Access To Water

ACCESS TO WATER
Rights, obligations and

the Bangalore situation
Jenny T. Grnwall
Linkping Studies in Arts and Science No. 439

Linkping University, Department of Water and Environmental Studies
Linkping 2008
Linkping Studies in Arts and Science x No. 439

At the Faculty of Arts and Science at Linkping University, research and doctoral
studies are carried out within broad problem areas. Research is organized in interdisciplinary research environments and doctoral studies mainly in graduate schools.
Jointly, they publish the series Linkping Studies in Arts and Science. This thesis
comes from the Department of Water and Environmental Studies at the Tema Institute.
Distributed by
Department of Water and Environmental Studies
Linkping University
SE-581 83 Linkping, Sweden
Also available from
Linkping University Electronic Press
http://urn.kb.se/resolve?urn=urn:nbn:se:liu:diva-11686
Access to water
Rights, obligations and the Bangalore situation
Jenny T. Grnwall
Cover: Girl in Dr Ambedkar Slum, Bangalore

Cover design by Valli Noghin
Photograph by Jenny T. Grnwall
Edition 1:1
ISSBN: 978-91-7393-870-9
ISSN: 0282-9800
Series: Linkping Studies in Arts and Sciences No. 439
Printed in Linkping by LiU-Tryck 2008
Jenny T. Grnwall
This study was made possible thanks to funding from SAREC.
To Aditya
for inspiring me with the story of the starfish
Preface and acknowledgment
When I set out on this study in 2004, a court decision hailed as a landmark
within my area of interest had just been reached in the Kerala High Court.
The case, which concerned important questions of groundwater depletion and
a landowners rights to this water measured against the human right to drinking water, received major attention. However, the decision was modified by
another court, then tried again and again. The Supreme Court undertook to
deliver a verdict swiftly the years have passed; no decision is in sight.
When I left India after my final field trip in February 2007, the long overdue Final Order from the Water Disputes Tribunal on the Kaveri River was to
be delivered within days. It was soon appealed against by the parties involved.
The Tribunal and the Supreme Court registered the complaints, then nothing.
At the same time, a major jurisdictional reform of the city under study had
just been enforced on paper. At the stroke of a pen, Bangalore tripled in size
geographically and the inhabitants in the metropolitan city as well as in the
over 100 incorporated villages awaited instructions on voting for new accountable leaders. Almost one and a half years later they are still waiting.
India is a dynamic country, undergoing transitional changes with major effects and implications on issues of water, and related rights and obligations.
Researching contemporary events means encountering unexpected results
among what is established. This reflects the India of today: the climate of
leading-edge technological development, business process outsourcing for
large multi-national corporations. The consequent social, economic and cultural changes often clashes with the persistence of traditional practices.
In 2003, I visited Hyderabad in Andhra Pradesh for a workshop as a precursor to this study. The subsequent four field trips between 2004 and 2008
lasted for periods of two to five months each. Even from my second visit to
India, it became apparent that every State displayed unique cultural, socioeconomic and political features. They have often reached different levels of
progress, and traditions and climate conditions are frequently incongruous.
The initial plan to make a comparative study over two States was discarded: the sheer scale and diversity of the problems would be quite cumbersome. Construing one city alone was sufficient.
The broader insights I gained from the time spent in India (in total, a quarter of the PhD-period) and from observations collected in the multiple places
visited were both beneficial and key to the claims made here. My perspective
on law as an instrument is forever enriched.
This study would not have been successful without two women in Bangalore:
Arati, with whom I could discuss every aspect of my study her input, contacts and good spirit were absolutely essential and Sumathi, who guided,
translated and drove me everywhere without the interest she took in my
work and her broad knowledge, my efforts would have been much harder.
Professor M.K. Ramesh at NLSIU was the initial key to Bangalore, and
Savitha S., Roopa Madhav, Rahul Singh, and personnel of the NLSIU library
and the CEERA made my legal research a joy. I was shown the greatest hospitality as well as my own desk by Svaraj/Oxfam India, where L.C. Nagaraj deserves a particular mentioning. Salma Sadikha, Subhash Chandra, Manoj Rai,
Ramesh Mukalla, M.S. Vani, P. Lakshapathi, Lawrence Surendra, Jeremy
Berkhoff and Gunnar Jacks have all been very generous with their time and
knowledge. Special thanks goes to people at the ALF and S. Vishwanath. Several others have also had a profound impact on the study.
I remain grateful to the Ramachandrans and the Davis family for opening
their homes and showing me the art of domestic water management.
For their supervision and guidance, I owe a debt of gratitude to Jan Lundqvist who took me to Tema and India, Anna Jonsson (f. Blomqvist) who inspired and encouraged me, Julie Wilk who courageously took on the project at
a later stage and especially Johan Hedrn who guided and supported myself
and the study. Special thanks goes to Jonas Ebbesson whose feedback was invaluable to the completion of my study.
Current and former colleagues at Tema V in Linkping and Norrkping
provided an eclectic, interdisciplinary and international background to this
study, which meant a lot though I myself was infrequently present. I especially
want to thank Karin and Mattias Hjerpe, Terse Sjmander Magnusson, Dana
Cordell, Madde Johansson, Annika E. Nilsson, Charlotte Billgren and Anna
Bratt, but also the inspiring people at Tema G and ever-helpful Ian Dickson. I
am grateful to Tim Crosfield for his thorough language editing, and to Valli
Noghin for the enlivened cover design.
The Nordic Environmental Legal Network conferences have given much
and regular food for thought, and Ive received a range of good advice from
Diana Amnus. David Langlet and Malin Christensson who read and discussed numerous drafts of my texts have been close friends and offered wise
comments, support and laughter alike.
I also want to thank my parents, without whose love and backing I would
not be where I am or who I am today, and my dear sister and brother for reminding me that the academic world is but a small piece of the universe.
Finally, to Aditya: I promise I will not write another doctoral thesis! Thank
you for your great love, patience and chocolate. Our mutual interest in India
and Bangalore will be further explored and enjoyed I am sure.
Stockholm in May, 2008.
6
Table of Contents
Abbreviations
Legal terms, doctrines, and principles
Key concepts, definitions of administrative and technical terms, etc.
List of maps
List of figures
List of tables
List of flow charts
Table of Cases
15
16
17
18
18
18
18
19
Part 1
Chapter I
Introduction
23
25
25
1 Competition, knowledge and control

2 Access to water in terms of rights
3 Turning scarcity into safe access
3.1 The conceptions of access and scarcity
3.2 Goals for development the MDGs
3.3 (Peri-)urbanisation processes
3.4 Urban poverty and water access
4 Setting the stage: access and supply in Bangalore
4.1 Development and growth in India
4.2 Indian water woes
4.2.1 Facts and figures
4.2.2 Strategies of access
4.3 Bangalore an Indian city in transition
5 Aim of the study, research questions
6 Outline of the book
25
26
28
28
29
30
31
33
33
34
34
36
37
39
39
Chapter II
Methodological aspects
42
42
1 Researching water management

1.1 Interdisciplinary research
1.2 Taking a (mainly) qualitative approach
2 Methodological paths and tools
2.1 Presence without pretence: choosing Bangalore
2.2 Interviewing and observing
2.3 Interpreters and interpretations
2.4 Material from other sources
3 Researching law
3.1 Introductory remarks
42
42
44
46
46
48
51
52
53
53
3.2 Primary and secondary legal sources

3.3 Traditional versus empirical research in law
3.4 Interpretation the essence of legal research?
4 (Self-) reflections and epistemological thoughts
4.1 Point of departure: my situated knowledge
4.2 Standpoint epistemology
55
56
58
60
60
61
Chapter III
Water and the City
65
65
1 Introduction
2 Geographical data
2.1 Introduction
2.2 Topography
2.3 Climate
3 Tanks, lakes and water supply
3.1 Water supply: the beginning
3.2 After the tanks: reservoirs
3.3 Modern times: the Cauvery Water Supply Schemes
3.4 Summing up
4 The underground reservoirs
4.1 From dug wells to bores
4.2 Geological conditions
4.3 Estimating groundwater resources
4.4 Alternative means of estimating recharge
4.5 Quality issues related to the groundwater resources
4.6 Summing up
5 Sharing Kaveris water
5.1 Background: a river and its Tribunal
5.2 Legal basis of the Tribunal
5.3 Final order
5.3.1 Some relevant details
5.3.2 Groundwater not to be included
5.3.3 Water supply to Bangalore
5.3.4 Domestic purposes as by consumptive use
5.4 After the Order
5.4.1 Appeal
5.4.2 The Orders practical significance
5.4.3 Summing up
5.5 Alternative ways of settling the dispute
6 (Peri-)urbanisation and Greater Bangalore
6.1 Understanding the processes
6.2 Division of administrative powers
6.2.1 Constitutional provisions
6.2.2 Municipalities: towns and cities
6.2.3 Village Panchayats: local self-governance
65
66
66
66
67
68
68
70
71
73
73
73
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77
79
82
83
84
84
85
88
88
89
90
92
93
93
95
95
96
97
97
100
100
101
103
6.2.4 Water governance at local level

6.2.4.1 Division and planning of the subject water
6.2.4.2 Karnataka and Bangalore
6.3 Growing Bangalore
6.3.1 A city that beckons
6.3.2 Planned suburbs, unplanned sprawl
6.4 Summing up
7 Poverty and access
7.1 Defining poverty
7.2 Slum conditions
7.3 Legal and administrative approach to slums
7.4 Figures of poverty in Bangalore
7.5 Summing up
8 Concluding remarks
104
104
105
107
107
109
111
112
112
115
115
119
121
121
Part 2
Chapter IV
Rights-talk
123
125
125
1 Introduction
2 The language of rights
2.1 Soft and hard law and the moral question
2.2 Defining rights
2.2.1 Rights as relations: Hohfelds analysis
2.2.2 No right without remedy
2.2.3 Rights as will
2.2.4 Rights justified by interest
2.2.5 Summing up
3 Jurisprudential matters
3.1 Seeing law as posited
3.2 Seeing law as natural
3.3 Revision? Modern-day ought and is
3.3.1 From higher to Hart
3.3.2 New (neo-) naturalism
3.3.3 Summing up
3.4 Practical implications of jurisprudential standpoints
3.4.1 The judge as law-maker
3.4.2 Discretion and morals
3.4.3 Summing up
4 Features of Indian jurisprudence and practice
4.1 Introduction
4.2 Dharma, religious values, and natural law
4.2.1 Dharma as a code of right behaviour
4.2.2 The discourse on religious and spiritual values
4.2.3 The discourse on natural versus positivist law
4.2.4 Summing up
4.3 Fundamental rights and duties under the Constitution
125
126
126
128
128
131
131
134
136
136
136
140
142
142
144
145
145
145
147
150
151
151
152
152
156
157
160
161
4.4 Judicial activism and Public Interest Litigation

4.4.1 Introduction
4.4.2 Access to justice and the judiciarys different role
4.4.3 Directions issued by the Court
4.4.4 The Judiciary, the Legislature and the Executive
4.4.5 Critique of PIL
4.4.6 Summing up
4.5 Borrowing and developing principles
4.5.1 Sustainable development, etc.
4.5.2 The Public Trust doctrine
4.5.3 The Polluter Pays principle
4.5.4 The Precautionary Principle
163
163
164
167
168
171
172
172
172
175
177
179
181
Chapter V
A human right to water
184
184
1 Introduction
2 Human rights as idea
2.1 Defining the notion
2.2 Right to and right from
2.3 Human rights as natural and/or positive rights
2.3.1 Two views, or more
2.3.2 Moral ground and negotiated provisions
2.3.3 Human rights correlated with duties
2.4 Duty-bearers and addressees
2.5 Human rights in the UN discourse
2.5.1 Legal and institutional framework
2.5.2 The rights-based approach
2.6 Criticism and problems
2.6.1 Issues of implementation and enforcement
2.6.2 Not a gift from the West
2.7 Summing up
3 The human right to water
3.1 Genesis and progress of the discourse
3.2 Applying Nickels test
3.3 Further arguments for acknowledging a right
3.4 Bases for asserting a legal right to water
3.4.1 A self-standing right in positive law?
3.4.2 Interpreting including
3.4.3 Additional legal bases
3.4.4 Right to water as customary law
3.5 Substantive content of the right to water
3.5.1 Basic need requirements
3.5.2 Physical accessibility
3.5.3 Access operationalised via law
3.6 Duties and obligations
3.6.1 The states responsibilities
3.6.2 Private providers and water vendors
184
185
185
185
186
186
188
190
194
196
196
197
199
199
201
202
202
202
206
210
210
210
214
216
217
217
217
221
222
224
224
226
10
3.7 Economic accessibility

3.7.1 Defining the notion
3.7.2 Are the poor paying more?
3.7.3 Outlook: free water in South Africa
3.8 Summing up
227
227
229
230
232
233
Chapter VI
Water as a Property Right
236
236
1 Introduction
2 Property in the language of law
2.1 The complexity of the subject
2.2 Property as a bundle of rights
2.3 Property as a natural right
3 Property in the form of ownership
3.1 Historical background
3.1.1 Roman principles and common law
3.1.2 Limitations to property rights
3.2 Classification of property
3.3 Water as property and property in water
3.3.1 A thing not capable of ownership
3.3.2 Classification of water
3.3.3 Riparian rights doctrine
3.3.4 Summing up
3.4 Property in groundwater
3.4.1 The cuius est maxim
3.4.2 Groundwater rights in English common law
3.4.3 Limits to rights in groundwater
3.4.4 Outlook: the English rule in the U.S.A.
3.4.5 Summing up
4 Property in the form of interests: easements
236
238
238
239
241
242
242
242
243
244
247
247
249
252
252
253
253
254
257
259
260
261
262
Chapter VII
Water Rights
264
264
1 Introduction
2 Water rights as customs and norms
2.1 Existence and role of de facto water rights
2.2 Social norms as local law
2.3 Legal pluralism
2.4 Customary law
3 Water rights as agreed-upon contracts
4 Water rights in law
264
264
264
267
269
273
274
275
279
11
Part 3
Chapter VIII
Right to water in Bangalore
283
287
287
1 The right to water: the Indian situation

1.1 Background
1.2 Access to drinking water a fundamental right
1.3 Limits to the right to water
1.4 Prioritising human needs
1.6 Constitutional amendments as proposed
1.7 The right to drinking water in policy
1.8 Concluding remarks
2 The right to water implemented: Bangalore
2.1 Regulating supply, administering access
2.2 The Bangalore Water Board
2.2.1 Background
2.2.2 Responsibilities of the Water Board
2.2.3 Unclear jurisdiction
2.2.4 Limits to responsibilities and powers
2.3 Financing the water supply
2.3.1 Tariffs
2.3.2 Public standposts ousted
2.3.3 Connecting the urban slums
2.4 Connecting the peri-urban
2.4.1 The Greater Bangalore Water and Sanitation Project
2.4.2 Users participation and capital contribution
2.5 Regulating rainwater harvesting
287
287
288
292
293
297
298
300
303
305
305
306
306
307
309
311
312
312
315
318
322
322
324
326
328
Chapter IX
Property rights and wrongs
333
333
1 The Indian law of property background

2 Regulation of water as property
2.1 Classification of immovable property
2.2 Classification of water as property
2.3 Riparian rights and inter-State rivers
3 Property in groundwater
3.1 A chattel?
3.2 An easement?
3.3 Ownership? Unlimited right?
3.3.1 Pre-Constitutional rulings
3.3.2 Contemporary High Court decisions
3.3.3 A clash between doctrines?
3.3.4 Awaiting authoritative adjudication
3.4 Regulation of and policy on groundwater resources
333
334
334
336
338
341
341
342
344
344
346
349
351
354
12
357
Chapter X
Water rights matter
361
361
1 Mounting pressure and competition

1.1 Properties lost, priorities lost
1.2 Water Users Associations
2 Legal rights, practices, social norms
2.1 Water rights de facto and legal pluralism
2.2 Customary law in the Indian interpretation
3 Water rights and the Kaveri
3.1 Bangalores water resources revisited
3.2 Dispute-settling and water rights
361
361
364
366
366
369
371
371
373
376
Chapter XI
Taking rights and obligations seriously
380
380
1
2
3
4
380
383
384
388
Three dimensions and yet no rights?

Groundwater rights and private providers
Regulating access in Bangalore and elsewhere
A reform of mindsets: responsibilities, not rights
13
14
Abbreviations
ADB
AIR
Art
AusAID
BBMP
BCC
BDA
BMP
BMRDA
BPL
BWSSB
C.E.
CGWB
Ch
COHRE
CSE
EC
EU
FAO
GA
GBWASP
GoI
GoK
ICESCR
ICJ
ILA
IPCC
IWRM
JBIC
KLT
KUIDFC
lpcd
MDGs
MLD
MPN
O&M
OECD
para
PCB
PIL
PIM
PPP
PRI
PWD
Rs.
RWH
SC
Asian Development Bank

All India Reporter
Article
The Australian Governments overseas aid program
Bruhat Bangalore Mahanagara Palike (Greater Bangalore Corporation)
Beneficiary Capital Contribution
Bangalore Development Authority
Bangalore Mahanagara Palike (Bangalore Municipality Corporation)
Bangalore Metropolitan Region Development Authority
Below Poverty Line
Bangalore Water Supply and Sewerage Board
Common Era, secular alternative to Anno Domini (A.D.)
Central Ground Water Board
Chapter
Centre on Housing Rights and Evictions
Centre for Science and Environment
European Community
European Union
Food and Agriculture Organisation
General Assembly
Greater Bangalore Water and Sanitation Project
Government of India
Government of Karnataka
International Covenant of Economic, Social and Cultural Rights, 1966
International Court of Justice
International Law Association
Intergovernmental Panel of Climate Change
Integrated Water Resource Management
Japan Bank of International Cooperation
Kerala Law Times
Karnataka Urban Infrastructure Development Financial Corporation
Litres per capita and day
Millennium Development Goals
Million litres daily
Most probable number
Operation and maintenance
Organisation on Economic Co-operation and Development
Paragraph
Pollution Control Board
Public Interest Litigation
Participatory irrigation management
here: Purchasing power parity
Panchayat Raj institution
Public Works Department
Indian Rupee, the national currency (internationally written as INR). Rs.100
converted to US$ 2.52 and 1.60 in mid-April 2008.
Rainwater harvesting
Supreme Court
15
Sec
TMC
TPA
ULB
UN
UNFCCC
UNHCHR
USAID
WB
WHO
WTO
WTP
WUA
Section
a thousand million cubic feet; 28,316,846,592 litres
the Transfer of Property Act, 1882
Urban Local Bodies
United Nations
UN Framework Convention on Climate Change
UN Office of the High Commissioner on Human Rights
United States Agency for International Development
World Bank
World Health Organisation
World Trade Organisation
Willingness to pay
Water Users Association
Legal terms, doctrines, and principles

Case law
Cuius est
De lege ferenda
De lege lata
Dominium
E contrario
Enjoy
Jurisdiction
Obiter dictum
Precedent
Publici juris
Ratio decidendi
Res judicata
Rule of law
Court decisions; the body of reported judicial opinions, especially in

countries with a common-law system.
Cuius est solum, eius est usque ad coelum et ad inferos to whomsoever the
soil belongs he also owns it to the sky and down to the depths.
What the law ought to be.
The law as it stands.
Full ownership.
On the contrary.
To have the use or benefit of something.
Right or power to administer justice and apply laws and to exercise authority and administrative power. Also refers to the geographical extent
of such rights.
A part of a judicial opinion that is merely a judges observation and
therefore not directly necessary in determining the specific issue
brought before the court. It is not binding and does not establish new
law, since it is not seen as an element of the judgment for the purpose
of its stare decisis value.
A court decision in the common-law system, establishing an authoritative principle or rule that lower courts and other judicial bodies are
governed by when deciding subsequent cases with similar facts.
Of public right. Denotes a thing or a right that is open and exercisable
by all persons, belongs to the entire community rather than to any private party. Water in the sea is the typical example.
The binding grounds and reasons for a judges decision on the facts of
a particular case. Regarded as the authoritative opinion for the purpose
of the judgments precedential value under the doctrine of stare decisis.
A matter already adjudicated upon cannot be raised again.
Here: Rechtsstaat. A doctrinal principle according to which everyone is to
obey the law, including governments. It prescribes constitutional governance, limited by laws and by fundamental principles of legality and
established procedure. The power of the state is limited according to
16
Sic utere
Stare decisis
Usufruct
Usufructuary
Writ Petition
the constitutional powers vested in it, in order to protect citizens from

arbitrary exercise of authority.
here: good neighbourliness, use your property so as not to damage anothers.
The doctrine of precedents, according to which the binding part of a judgment (ratio) holds authoritative value and must be followed in subsequent
cases with similar or identical facts.
The right to use and enjoy the fruits of something not ones own, i.e., belonging to another, as long as the property and its substance is not damaged,
impaired or altered.
One that holds property by usufruct right. Also of or relating to the nature of
a usufruct.
The Indian legal system allows writs (directions, orders) to be issued by the
courts on petition by an aggrieved party. The writ is addressed to an authority
or to persons, natural or jural, who is to do or refrain from doing something
and functions to enforce a legal right conferred by the Constitution or otherwise, barring mere contractual rights. It can include remedies against the arbitrary or illegal actions of the authority or person.
Key concepts, definitions of administrative and technical terms, etc.

Adivasis
Caste
Centre
Coolie
Crore
Dalits
Easement
Gram Panchayat
Gram Sabh
Hobli
Independence
Institution
Kannada
Kere
Lakh
Paddy
Pukka
Riparian right
Indigenous people, tribals.

Four varnas are mentioned in the ancient Hindu scriptures: Brahmins,
Kshatriyas, Vaishyas, and Shudras. The group of former untouchables
(now: Dalits) are either considered as the lower section of Shudras or as
outside the caste system altogether. The modern Indian caste system is
more often talked of in terms of communities and sub-communities
(Jtis).
The central, federal Government of India.
Labourer doing manual work, often day-wager.
10 million.
Member of Scheduled Castes, formerly known as Untouchables.
A right which the owner, or occupier, of land can possess as such, for
the beneficial enjoyment of his/her land. The right to do something, or
to prevent and continue preventing something to be done, applies to
certain neighbouring land owned by someone else.
Village council or assembly.
Meeting at village level provided for as part of the Panchayat Raj institution.
A tax revenue term for a cluster of villages.
The British Raj of India terminated on the midnight of August 15,
1947, after which the independent dominion of India was created.
Here: used in the generic sense of the word, thus synonymous with organisation or authority.
The main language spoken in the state of Karnataka.
A natural freshwater lake or tank.
100,000.
Rice (semi-aquatic, irrigated crop).
Genuine, good of its kind, high quality, first class.
A right of the adjacent landowner to usufructuary use of flowing water.
17
Sabh
Seepage
Sic
state
State
Taluk
Tank
Tubewell
Sump
The West/
Western tradition
Wet crops
Meeting, assembly, congregation, or council.

Percolation into pores or from the soil.
So; thus; actually written or printed like this
short for nation state; refers also to the government authority.
(Semi-)autonomous part of a federation of a sovereign nation state.
Administrative level in some States of India.
Pond, water-work, reservoir or lake of small size used for storing
freshwater. NB! Can also denote the plastic cistern container that stand
on the roofs of most buildings.
Drilled well, from which water is drawn via mechanical pump.
Underground water storage facility; a cistern tank.
Part of the world with cultures of European origin contrasted
historically with the East or Orient civilisation.
Crops which normally require irrigation for their growth.
List of maps
38
38
67
92
92
92
Map 1. India; Karnataka State

Map 2. Greater Bangalore
Map 3. The Deccan Plateau.
Map 4. River basins
Map 5. Basin boundary through Bangalore
Map 6. Bangalore urban district
List of figures
75
77
218
Fig. 1. Groundwater recharge in bedrock

Fig. 2 Rock profile
Fig. 3 Hierarchy of water requirements
List of tables
Table 1. Soils in the Bangalore area
Table 2. Monthly expenditure for domestic workers family
Table 3. Sources of water
Table 4. Summary of requirement for water service level to promote health
Table 5. Water Board tariffs
76
120
220
222
313
List of flow charts

245
Flow chart 1. The bundle of property
List of portraits
64
286
332
Latha
Malini
Yelahanka
18
Table of Cases
Indian courts
(parallell reporting marked by =)
A.K. Gopalan v State of Madras AIR 1950 SC 27.
A.P. Pollution Control Board I v. Prof. M.V. Nayudu AIR 1999 SC 812 = 1999 (I) JT 162 = 1999 (1)
SCALE 140.
A.P. Pollution Control Board II v. Prof. M.V. Nayudu (2001) 2 SCC 62.
Adinarayana v. Ramudu (1910) ILR 33.
Alamsher v. Ram Chand 1898 Pun Re 11.
Apparel Export Promotion Council v. A.K. Chopra 2000(1) SLJ SC 65 = AIR 1999 SC 625.
Attakoya Thangal v. Union of India 1990 (1) KLT 580.
Babaji Ramaling Gurav v. Appa Vithavja Sutar AIR 1924 Bom 154.
Baban Mayacha v. Nagu Shravucha (1876) ILR 2 Bom 49.
Bandhua Mukti Morcha v. Union of India 1984 SCC (3) 161 = 1983 SC ALE (2) 1151.
Bandhua Mukti Morcha v. Union of India (1997) 10 SCC 549.
Basavana Gowd v. Narayana Reddi AIR 1931 Mad 284.
Bihar v. S.G. Bose 1968 (1) SCR 313.
Cauvery Water Disputes Tribunal Final Order. Not Gazetted.
Chaitan Baral v. Rathia Patra AIR 1972 Ori 53.
Chief Controlling Revenue Authority v. Anti Biotic Project, Virbhadra, Rishikesh AIR 1979 All 355.
Chinnappa Chetty v. Secretary of State 1911 ILR 42 Mad 239.
Chockalingani Pillai (1912) 2 Mad. W.N. 219.
Chundee Churn Roy v. Shib Chunder Mundul (1880) ILR 5 Cal 945.
Delhi Water Supply & Sewerage Disposal Undertaking & anr. v. State of Haryana & ors. 1996 SCC (2)
572 JT.
Dr. B.L. Wadehra v. Union of India (Delhi Garbage case) AIR 1996 SC 2969.
F.K. Hussain v. Union of India AIR 1990 Ker 321.
Fertilizer Corporation Kamgar Union v. Union of India (1981) 1 SCC 568.
Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608.
Gokal Chand v. Parvin Kumari AIR 1952 SC 231.
Gowramma v. State of Karnataka ILR 1994 KAR 2649 = 1994(4) Kar L.J. 22.
Hari Mohun Thakur v. Kissen Sundari (1884) ILR 11 Cal 52.
Het Singh v. Anar Singh AIR 1982 All 468.
Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat (a) 7 April 2005. 2005 (2) KLT
554.
Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat (b) 1 June 2005.
MANU/KE/0154/2005.
I.C. Golaknath v. State of Punjab AIR 1967 SC 1643.
Indian Council for Enviro-Legal Action v. Union of India (the CRZ Notification Case) 1996 (5) SCC
281.
Indian Council for Enviro-Legal Action v. Union of India (the Bichhri case) (1996) 3 SCC 212 = AIR
1996 SC 1446 = JT 1996 (2) 196 =1996 SCALE (2)44.
19
In the matter of Cauvery Water Disputes Tribunal AIR 1992 SC 522.

Intellectuals Forum, Tirupathi v. State of AP & Ors. AIR 2006 SC 1350.
Jagadish Chandra Deo Dhabal Deb v. Indian Copper Corporation Ltd. AIR 1953 Pat. 283.
Jagannath v. Union of India 1995(5) SCALE 126.
Jagannath v. Union of India (the Shrimp Culture Case) (1997) 2 SCC 87 = AIR 1997 SC 811.
Jibananda Chakrabarty v. Kalidas Malik (1914) ILR 42 C. 164.
K.M. Chinnappa v. Union of India & Ors. (2003) 2 SC 724.
Karathigundi Keshava Bhatta v. Sunnanguli Krishna Bhatta AIR 1946 Mad 334.
Kesevananda Bharati v. State of Kerala (1973) 4 SCC 225 = AIR 1973 SC 1461.
M.C. Mehta v. Union of India AIR 1987 SC 965 = (1987) 4 SCC 463.
M.C. Mehta v. Union of India (Oleum Gas Leak Case, a.k.a. the Shiram Gas Leak case) AIR 1987
SC 1086 = (1987) 1 SCC 395.
M.C. Mehta v. Kamal Nath (the Span Motels case) (1997) 1 SCC 388.
M.C. Mehta v. Union of India (Badkhal and Surajkund lakes case) (1997) 3 SCC 715.
M.C. Metha v. Union of India (1997) 11 SCC 312.
M.C. Metha v. Union of India 2004 (12) SCC 118.
Mahomedans of Lonar v. Hindus of Lonar AIR (32) 1945 Nag 106.
Maneka Gandhi v. Union of India 1978(2) SCR 621 = AIR 1978 SC 597.
Manu Mangal Naik v. Dhaniram Naik AIR 1963 Ori 97.
Medarametla Seshareddy v. Korrapati Gopala Reddy AIR 1987 AP 1.
MNab v. Robertson (1896) H.L. (Sc.) 129.
Moidin Kunhi Beavy v. Mallayya (1953) MLJ 816.
Mrs. Susetha v. State of Tamil Nadu and Ors. AIR 2006 SC 2893 = 2006 (7) SCALE 640 = (2006) 6
SCC 543.
Narmada Bachao Andolan v. Union of India & Ors. 2000 SC 3751 = (2000) 10 SCC 664 = 2000(7)
SCALE 34.
P.R. Subhash Chandran v. Government of Andhra Pradesh & Ors. 2001 (5) ALD 771.
Parbhawati Devi v. Mahendra Singh AIR 1981 Pat. 133.
Peoples Union for Civil Liberties v. Union of India & Ors., In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No. 196 of 2001. Unreported.
Perumal v. Ramasmi Chetti (1887) ILR 11 Mad. 16.
Perumatty Grama Panchayat v. State of Kerala 2004 (1) KLT 731.
Puttappa Talavar v. Deputy Commissioner 1997 (3) Kar 136 LJ = AIR 1998 Karn. 10.
Rama Muthuramalingam v. Dy. S.P AIR 2005 Mad 1.
Ramessur Persad NArain Sing v. Koonj Behari Pattuk (1878) ILR P.C. 4 Cal. 633.
Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch 2000 (3) SCC 29.
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (the Dehradun Valley case) AIR 1985
SC 652.
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1987 SC 359 = 1986 (Supp.) SCC
517.
S.K. Garg v. State AIR 1999 All. 41.
Secretary of State v. Sannidhiraju Subbarayudu AIR 1932 PC 46.
Sham Sunder v. Puran 1990 (4) SCC 731.
20
Sheela Barse v. Union of India AIR 1988 SC 2211 = (1988) 4 SCC 2261 = JT 1988 (3) 15.
State of Bihar v. Subodh Gopal Bose AIR 1968 SC 281.
State of Karnataka v. State of Andhra Pradesh (2000) 9 SCC 572 = 2000 (3) SCALE 505.
State of Karnataka vs. Union of India 1978(2) SCR 1.
State of Madras v. V.G. Row AIR 1952 SC 196.
State of Tamil Nadu v. State of Karnataka (1997) 5 SCC 573.
State of Tamil Nadu v. State of Karnataka and Ors. (1997) INSC 363.
State of West Bengal v. Subodh Gopal AIR 1954 SC 92.
State of West Bengal v. Kesoram Industries Ltd. (2004) 10 SCC 201.
Subash Kumar v. State of Bihar AIR 1991 SC 420 = (1991) 1 SCC 598.
Subraya Bhatta v. Lingappa Gowda AIR 1973 Mys. 171.
Sukry Kurdepa v. Goondakull (1872) 6 Mad. HC 71.
T. Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad AIR 1987 AP 171.
Tamil Nadu Cauvery NPV Sangam v. Union of India and Ors. (1990) 3 SCC 440.
Tamil Nadu Cauvery Neerppasanavilaiporulgal Vivasayigal Nal v. Union of India & Ors [1990] INSC 193
(4 May 1990).
Thakur Paramanick Chunder v. Ram Dhone W.R. 288 (F.B.).
Tibali Pachya Gond v. Ramakrishnan Mohanlala Kalar 1944 NLJ 374.
Tulsi Ram and Ors. v. Mathura Sagar Pan Tatha Krishi and Anr. WITH The Proprietors of Mathura Sagar
Bareja and Anr. v. Tulsiram and Ors. AIR 2003 SC 243 = (2003) 1 SCC 478 = 2003 (7) SCALE 7.
Union Carbide Corporation v. Union of India AIR 1992 SC 248, p. 261.
Valsamma Paul v. Cochin University AIR 1996 SC 1011, para 25 = (1996) 3 SCC 545.
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715 = (1996) 5 SCC 647.
Venkatagiriyappa v. Karnataka Electricity Board 1999 (4) Kar L.J. 482.
Venkatanarasimha Naidu v. Kotayya, ILR 20 Mad. 299.
Virender Gaur v. State of Haryana 1995 (2) SCC 577.
Other courts
Acton v. Blundell (1843) 12 M. & W. 324.
Ballard v. Tomlinson (1882) 29 ChD 115.
Bradford Corporation v. Pickles (1895) A.C. 587.
Chasemore v. Richards (1859) 7 H.L.C. 349 = 11 E.R. 140, p. 147.
City of Barstow v. Mojave Water Agency (23 Cal. 4th 1224).
Copeland v. the Fairview Land & Water Company 165 Cal. 148.
Dickinson v. the Grand Junction Canal Company (1852) 7 Exch. 282 p. 300 = 155 E.R. 953 (Ex.), pp.
960f.
Gabkov-Nagymaros Dam, ICJ Rep. (1997), 7 (ICJ Judgment 25th September). Opinion per
Weeramantry, p. 88.
Government of the Republic of South Africa and others v. Grootboom and others, 2001 (1) SA 46 (CC).
Grigsby v. Melville [1974] 1 W.L.R. 83F-G, 85G.
Hudson v. Dailey, 156 Cal. 617 (1909).
Katz v. Walkinshaw 141 Cal. 116 (1903).
Metropolitan Railway Co v. Fowler [1892] 1 Q.B. 165.
21
Mitchell v. Warner (1825), 5 Conn. 497.

National Audubon Society v. Superior Court of Alpine County (the Mono Lake case), 658 P.2d 709 (Cal.
1983).
Netherlands v Belgium, PCIJ Ser. A/B No. 70 (1937), 4.
North Sea Continental Shelf, ICJ Rep. (1969), 3.
Nuclear Tests Cases (Australia v France; New Zealand v France), ICJ Rep. (1974) 253.
Race v. Ward (1855) 4 E. & B. 702.
Riggs v. Palmer 115 N.Y. 506, 22 N.E. 188 (1889).
Rylands v. Fletcher (1868) [1] LR 3 HL 330.
Southern Pacific Company v. Spring Valley Water Company 159 Pac. 865 (Cal.).
South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase. ICJ Rep. (1966), 6.
United Public Workers v. Mitchell, 330 U.S. 75 (1947).
22
Part 1
23
24
Chapter I
Introduction
1 Competition, knowledge and control

Competition for water is intensifying. The urge to cater for basic human needs, together with demands for general improvements in standards of living and continued economic growth, has resulted in a rapid increase in the pressure on available
water resources. Lowered water tables, reduced natural flows, steadily more complex pollution and quality problems, natural occurrence of arsenic and fluoride, etc.,
tremendously affect peoples access to water for sustenance as well as the agricultural sectors needs and conditions in the ecosystems. Demographic trends of increasing population density, migration and urbanisation add to the picture, changing the patterns of competition for freshwater.
An estimated almost 1.2 billion people worldwide lack access to safe drinking
water. The less-developed regions of the world are particularly vulnerable to increasing water scarcity, and the areas which are at risk due to climate change have
become a matter for the United Nations (UN) Security Council. Efforts to build up
and disseminate greater knowledge about how man-made climate change will affect
such things as access to freshwater have, in line with this, been rewarded with the
Nobel Peace Prize. Access is increasingly a question of linking scientific knowledge
and forecasts with value-based principles such as precaution, morals, dignity and
law. All these aspects are of importance for effective regulation and control, and
for the concepts of rights and obligations to be meaningful.
25
2 Access to water in terms of rights

In a recent study of peri-urban1 water conflicts in Chennai, southern India, a picture is painted of colourful tankers travelling empty out of the city on congested
roads to collect water purchased from the wells of farmers in surrounding villages.
They return full and ready to deliver the water to houses and hotels, to cistern tanks
in the streets, and to the women waiting with their pots and vessels. The study
points out how these tankers fill a vital complementary function to supply city
dwellers with freshwater, whilst simultaneously earning some farmers good money
from selling water from their wells. Meanwhile, others lose access to a precious
common resource for agriculture or village water supply and seek to defend their
water rights.2 This picture could have been from the city of Bangalore, like Chennai in the southern part of India.
In the language of law, the phenomena described can be understood from several angles or dimensions, three of which are chosen here. There is the right to water for drinking, etc., as a human right; there is the right to use and sometimes appropriate water which is related to property in land; and there is the water right that
someone can have acquired by customary law, prescription, agreement, court order,
or permit. In other words, there are different kinds of rights, and they in turn relate to different aspects of water (surface- and groundwater, water as a medium or
as a resource of sustenance, and so on). Legally, these rights partly converge, but
partly stand in opposition to each other in the sense that they represent competing
uses.
For some twenty years, development thinking in the UN and many development aid institutions and organisations has been directed towards a rights-based approach.3 Accordingly, respect for human rights, not only human needs, is promoted
alongside societys obligation to respond to the inalienable rights of individuals.4 In
the wider water management and governance discourse, the issue of water rights
and how such relate to other rights human rights, land and other property rights,
riparian rights, customary rights and practices, etc. is mostly being discussed from
a philosophical viewpoint, with more or less striking economic overtones. This
leaves a gap in knowledge and a need for an analysis that is better grounded legally.
It is, in short, unclear whether to see a right to water as a natural and inherent right
for every human being, or if such a right could only be argued for when positively
regulated.
Two aspects are therefore of further importance here. First, something perceived as scarce and (therefore) involving a value in society is generally organised
and controlled to some extent. However, a resource can be perceived as more or
less complex in itself, or the scarcity situation is differently interpreted. The effect
1
The notion of peri-urban is comparable with what that of rural-urban fringe, Bentinck, p. 19.
Butterworth & Warner, p. 9. A typical tanker holds 7,000 litres.
3
UN 1998/Annual Report of the Secretary-General on the Work of the Organization, para 173.
Cf. Chapter V below.
4
Ibid, para 174.
2
26
can be control not sufficiently adjusted to scientific and/or social facts. Much use
of and operations regarding water are unregulated in formal law both in terms of
the rights allowed and the obligations that correlate to having and exercising a right.
Social norms and local rules may also be lacking for some aspect of water use and
abuse. The result can be both unsustainable and inequitable.
Law relating to groundwater is a typical example. Early on, groundwater was
thought of as invisible, hence unpredictable, and therefore better left largely unregulated. Many legal systems today, however, place restrictions on how it can be
abstracted, affected and used. As we will see in Chapter IX, existing law on
groundwater in India is limited in its scope.5 Landowners are seen as water-lords
in the meaning that they are perceived to have unlimited rights to the water underground. This perception applies to more than 20 million wells spread across the
Indian subcontinent,6 and it is the precondition for farmers to sell their groundwater to city dwellers as well as for industrial use in, i.a. the textile business and for the
manufacture of soft drinks. The legislators focus has instead been on mitigating
the effects of certain polluting activities on (surface) water quality.
Secondly, most of what is termed law subsuming rights and obligations
is understood thus, due to the theory of legal positivism developed in the Western
world since the 1600s. In short, a rule giving landowners an unlimited right to appropriate groundwater is valid regardless of whether it is also morally or ethically
sound. It is furthermore considered as the legally binding rule, even though there
might be other perceptions in the local setting which might reflect traditional
practice and which might even better reflect the special context. The Indian legal
system is a mixture of the countrys indigenous law and English common law as
well as rules and doctrines later imported from the civil-law system, and also doctrines applicable in the U.S.A. The influence of judge-made law is strong and very
important in the field of environmental protection and the right to water. Within
law, the formal view predominates over conceptions of natural rights, community
rights and the like. Outside law, the thinking is often fundamentally different. This
dichotomy is termed law in books and law in action, respectively.7
These aspects and the three dimensions to rights will be developed in Part 2 of
this study. In Part 3, this will be analysed in the Indian setting, and applied on the
Bangalore situation. With the foregoing as background, the overall aim of this study
can be introduced: to analyse critically the notion of rights and the role of law relating to access to water.
5
A Model Bill on groundwater has been issued and a number of States have enacted regulation
on, for instance, drilling of new wells in over-exploited areas.
6
According to the Third Minor Irrigation Scheme Census, conducted in the years 2000-01, the
number of wells was 18.5 millions, Ministry of Water Resources web page Results and findings.
Predominantly, these consist of dug wells and shallow tube wells, and most are privately owned.
7
The division between law in books and law in action was first made by the sociologist Roscoe
Pound in 1910. While the former relates to an internal view on law, often by applying a blackletter approach, law in action takes more of a sociological point of view.
27
3 Turning scarcity into safe access

3.1 The conceptions of access and scarcity
The connection between poverty-alleviation, development and access to water has
for several decades been stressed both by the scientific community and among policy-makers. The Human Development Report of the United Nations Development
Program (UNDP), 2006, had water as its focus. The point of departure was unambiguous:
For some, the global water crisis is about absolute shortages of physical supply.
This Report rejects this view. It argues that the roots of the crisis in water can be
traced to poverty, inequality and unequal power relationships, as well as flawed
water management policies that exacerbate scarcity.8
This UNDP Report thus held that inadequate access to water is a deficit rooted not
in physical (un)availability, but in political choice and governance.9
What is meant by access to water? The notion refers to access to safe drinking
water and is mostly understood as that developed by the World Health Organization (WHO) and the United Nations Childrens Fund (UNICEF).10 There are several definitions, though, including different estimations of the quantitative requirements (ranging from 3 to 50 litres per capita and day, lpcd). This is to cover not
only the needs of water for drinking, but also for preparing food at home, as well as
basic health protection.11 Access is here normally distinguished from the notion of
consumption. The definition of safe water relates both to the water source
and/or technology as being improved, based on certain criteria,12 and to such aspects as physical accessibility.13
It is generally recognised that the issues of access to water have clear gender implications: it is traditionally women and girl children who are assigned responsibilities involving fetching freshwater and storing it in the household; preparing food
and other domestic chores; and taking care of the basic health of family members.
It is, contrariwise, traditionally and throughout the world, men who have the decision-making power in the sense that they are involved in infrastructure development, they are generally granted a better education, they have earnings outside the
home, and they are allowed to take part in public life to a greater extent than
women are.
UNDP 2006, p. v.
Ibid, p. 2. The yearly Human Development Reports do not express the view of the UNDP as an
organisation, though.
10
The terms access, safe, and drinking water will be further analysed and put in context in
Chapter V below. Issues of sanitation are normally dealt with in close connection to access, but
the scope of this study does not permit this.
11
Cf., foremost, Gleicks writings; Howard & Bartram for the WHO, pp. 7, 9.
12
Cf., foremost, publications and guidelines from the WHO 2006.
13
Howard & Bartram, pp. 23f.
9
28
What is water scarcity, then? Scarcity occurs where the readily available (utilisable) water resources are inadequate in relation to what is demanded. There is no
absolute shortage of freshwater on Earth in relation to its population. Except for in
natural disasters, water tends to be available and yet over one billion people lack
safe access to water for drinking. This can be due to several factors apart from the
physical and chemical ones: for instance, the distance to a source of freshwater
from human dwellings; very many users competing for the same source; lack of appropriate infrastructure; poor service delivery, or discriminatory execution of the
water provision. In addition, many millions of people lack the ability to pay for
available water services because they live in extreme, absolute poverty. All these factors are talked about as matters of governance.
At the same time, one-third of the worlds population is currently living in
places where water is at least temporarily scarce. Conditions such as regional precipitation being low (or lower than the statistical average over a period), or the water resources being over-allocated are two of numerous reasons. Consumption requirements can also far exceed what is (can be) stored in reserves, and agricultural
practices are often highly inefficient. Further, the demand for water-intensive crops
(such as rice) and meat is steadily increasing. Most of all, though, scarcity seems to
depend on un- or ill-planned allocation strategies.14 Essentially all the relevant literature from the past fifteen years recognises that socio-political and socio-economic
factors social structures, law, norms, institutions, and power inequalities play
important roles in relation to water access. There is thus a need to develop more
functional means to administer and arrange for access to drinking water.
To attain improved access to safe drinking water, water users needs and demands and the availability and means of supply must be taken into account. The
demand-side of the problem is partly due to competition between different sectors15 (mainly drinking/domestic needs, agriculture/food security, and industrial),
and partly due to where the water consumers are located. The problem is compounded by the varying requirements for quantity and quality, foremost potability.
Providing supply is, in turn, always related to costs in time as well as ready money
for collection, storage, treatment, distribution, etc.
3.2 Goals for development the MDGs

One result of the focus on national and international agendas to relate development
efforts to water issues is the UN proclamation of 2005-2015 as the International
14
Cf. Moldens et al. Comprehensive Assessment. The researchers in this project have estimated
that agriculture uses up to 70 times more water to produce food than is used for drinking and
other domestic purposes. Recently the production of bio-energy such as ethanol fuel is also becoming a large water consumer. Molle & Berkoff, p. 3, have (as part of the Comprehensive Assessment) found that sectoral allocation stress is often identified as resulting from four different
observations: a) agriculture gets the lions share of all diverted water resources; b) agriculture is
not only the main water user but also an activity that incurs by far the largest wastage; c) cities are
thirsty ; and d) water productivity in non-agricultural sectors is far higher than in agriculture.
15
Ecosystem services are fundamental but are difficult to classify as a sector.
29
Decade for Water.16 More importantly, though, is that the UN in 2000 adopted
eight Millennium Development Goals (MDGs).17 Though all these goals relate more or
less directly to how we manage our water resources, the most important are goals
one, three and seven: to eradicate extreme poverty and hunger, to promote gender equality and empower women and to ensure environmental sustainability.
Special targets have been declared for the MDGs the tenth being to reduce by half
the proportion of people without sustainable access to safe drinking water by 2015.18
Of the people who lack access to safe water, nearly two-thirds live in Asia. They
have to resort to potentially harmful sources which kill more than four thousand
children every day. Some 1.8 million people die each year from diarrhoeal diseases,
including cholera. Ninety percent of these are children under the age of five. The
absolute majority of the affected live in developing countries and eight of ten are
rural dwellers.19 The proportion of poor living in cities and lacking access is, however, increasing as a result of urbanisation.
Meeting the target of reducing by half would mean better health, longer
lives, greater dignity and improved production potential for half a billion of the
worlds poorest people, especially women and children. Progress regarding access
to drinking water is according to several UN bodies and reports they refer to
pointing in the right direction, although the trend has deteriorated somewhat. From
the statistics, it seems as that Sub-Saharan Africa will most probably not see the
target met in time.20 The MDG Indicators of 2006 and the 2007 MDG Progress
Chart show that in the case of India, though, the halving has now been reached:
comparing the figures for 1990 and 2004, the proportion of the population using
so-called improved drinking water sources had risen from 70 to 86 percent (from
89 to 95 percent in urban areas).21 Nevertheless, what the current statistics actually
show and whether the access in question is sustainable and/or actually safe, merit
discussion. In addition, while a target may have been met, efforts cannot stop there.
Behind the figures, millions of people still lack the crucial access to water.
3.3 (Peri-)urbanisation processes

The greatest challenge to the provision of water and sanitation services will be in
the urban areas.22 During the next few decades, towns and cities of the less developed regions of the world are projected to absorb the entire expected population
growth,23 and around 2017 the number of urban dwellers is projected to equal the
16
The International Decade for Water is in fact the third of its kind. The first decade, 1965-74
was dedicated to hydrology, whilst the second, 1981-90, focused on drinking-water supply and
sanitation. 2003 was the International Year of Freshwater.
17
General Assembly 2000.
18
The goal and the target are often referred to as 7/10.
19
WHO/UNICEF JMP 2006; WHO 2005, p. 7.
20
WHO/UNICEF JMP 2006.
21
UN Statistics Division, per update 10 Oct 2006; urban and total.
22
WHO/UNICEF JMP 2000, pp. 29ff.
23
UN DESA 2006, p. 2.
30
number of rural dwellers in the less developed regions of the world.24 The majority
of people who migrate to cities and towns are poor, and will likely end up in the
peri-urban areas and in the slums. One consequence of such settlement shifts is
that prospects for improved access to safe water will remain low, or might even
decrease.
Urbanisation brings with it a situation where the city competes with the rural
hinterland for scarce resources and the latter increasingly supplies the former
with water. Urbanisation should lead to advantages of scale etc. for the providers,
and at least in theory to water being more easily accessible because of proximity.25 These factors are at the same time likely to augment actual water consumption and possibly also demand and hence also the costs of supply and the pressure on resources. Further, water is brought in to cities over steadily larger distances, taking little account of river-basin boundaries, administrative borders between upstream/downstream districts and States, or competing sectors needs.
In developing countries, the definition of urban centre boundaries is problematic. This is especially the case where as in Bangalore agricultural and nonagricultural activities are spatially integrated with industrial development, suburban
layouts and other uses of the land. At the peri-urban interface, mobility and fluidity,
commuting and the movement of goods within the region, tend to be extremely
high.26 As we will see, the city of Bangalore suffers from what we can call periurbanisation and unclear boundaries, both decisive for the possibilities to claim
ones right of access to safe drinking water and for issues of legal regulation, control and preservation. Further, it will be shown how boundaries and geographical
location affect strategies for self-sufficiency and need for small-scale providers.
This can be explained by the peri-urban interface frequently featuring, on the one
hand, a population of disproportionately poor households and producers and, on
the other, the possession of important environmental services and natural resources
that are consumed in the towns and cities.27 Many people therefore live so close to
the city, (yet) so far from the pipes.28
3.4 Urban poverty and water access

The global phenomenon of urbanisation brings with it steadily growing urban poverty, in that the group defined as urban (though strictly, many are thus periurban) and simultaneously poor is becoming larger by the day. Unless this has already happened, it will not be long before the majority of the worlds poor will be
found in urban areas.29 Not all peri-urban areas are slum areas, though.30 Further,
24
UN DESA 2004. On average, it is estimated that the world became urbanised during 2007.
Demand and access as factors of distance to source are discussed in Chapter V.
26
Tacoli, p. 148.
27
Allen, Dvila & Hofmann 2006a, pp. 20f.
28
Jasko.
29
Cf. Radoki, p. 344, with references.
30
There are several ways of understanding the notion of slum, as will be seen in Chapter III.
25
31
not all urban and peri-urban poor live in slum areas; and not all areas formally registered as slums are inhabited by people that are registered as and/or perceive
themselves as poor. At the same time, an increasing number of poor lead their lives
on the pavement or as temporary squatters in buildings or on pieces of land that legally belong to someone else, because slum dwellings are also scarce. Under such
circumstances, the urban and peri-urban poor not only live undignified lives in
comparison with people living in houses or pukka (good quality) huts31 the practical accessibility to amenities is normally also less, which affects prospects for development both individual and general.
Urban poverty differs on several accounts from poverty in rural environments.
Urbanisation can be viewed as an indicator of development, as a sign of high industrialisation and of a technologically advanced economy. The more urbanised a
nation, the higher the average life expectancy and the literacy rate, and the stronger
the democracy.32 Partly because of this, it has been held that the urban poor in lessdeveloped regions of the world often fare better than the average rural resident
with respect to access to basic services such as drinking water, sanitation, electricity
or educational facilities.33 However, according to The State of the Worlds Cities Report
2006/7, the general assumption that urban populations are healthier, more literate
and more prosperous than rural populations is not true.34 The Report found that
slum dwellers are as badly off, if not worse, than their rural relatives.
Cities may be centres of wealth and opportunity, but they are also centres of environmental problems and huge, often growing, inequalities. Around a billion urban
dwellers live in crowded huts and tenements, boarding houses or squatter settlements or are homeless pavement dwellers. Being poor in the urban environment
generally means having less possibilities than in the rural milieu to provide for ones
own needs. Most have to live without adequate provision of water and sanitation,
healthcare, schooling, etc. They are often exploited by landlords, politicians, police
and criminals.35 Even in established democracies such as India, many are denied the
possibility to vote, because they lack the formal address required for registration
with various authorities. In India, this problem is connected to the lack of khata,
the certificate which is the evidence that one holds property in land and identifies
the person who is primarily liable for payment of property tax.
There are greater divides between different strata of the urban population than
in the rural environment, due to income distribution. A large group of inhabitants
of developing countries experience absolute poverty, measured in terms of purchase power parity. This often affects access to drinking water when it has to be
purchased.
31
A house which is pukka would be of good quality, thus not a shelter or mud dwelling.
Satterthwaite.
33
UN DESA 2006, p. 2; National Research Council.
34
UN-HABITAT 2007.
35
Cf. Satterthwaite.
32
32
4 Setting the stage: access and supply in Bangalore

4.1 Development and growth in India
One imperative reason for the generally increasing pressure on Indias water resources is growth, measured in terms of both economy and population. The Indian
population exceeds 1.1 billion people and annual demographic growth is almost 1.4
percent.36 The economy opened up in 1991 and India joined the World Trade Organisation in 1995.37 The gross domestic product (GDP) has risen by some 8 percent per year lately, leading to higher purchasing power and altered lifestyle choices.
The real GDP growth (on an expenditure basis) has been forecast to slow from an
estimated 8.7% in fiscal year 2007/08 (April-March) to an annual average of 7.6%
between 2008/09 and 2012/13.38
The urbanisation that is seen in most parts of the world is also evident in India.
At the last census (2001), over 70 percent of Indias population lived in villages, but
decadal growth was 17.9 percent in rural areas compared to 31.2 percent in urban,
indicating a clear trend. The middle class is believed to comprise somewhere between 200-300 million people; though the figure is not very exact it is beyond
doubt growing rapidly. Around a quarter of the population is, nonetheless, living
below the poverty line (BPL).39 The official definition of this poverty line is based
on a daily calorie norm of 2,400 kcal (2,100 kcal in the urban environment), converted to the purchasing power of food items only. In the State of Karnataka (of
which Bangalore is the capital), the calculated price of the urban food basket
equivalent to 2,100 kcal means that earnings above the threshold of Rs.599
(approx. 10, US$15) per person and month place a person above the poverty line.40
Indias development is hence very varied and unevenly spread and in certain
respects cannot be characterised as progress. Almost half of the children below five
years of age still suffer from malnutrition and under-weight.41 Female foeticide (sexselective abortion) is practised to the extent that the sex ratio is among the lowest
in the world, despite legal prohibition and efforts to raise awareness and change at36
The 2001 census put Indias population at 1.027 billion; the estimation five years later was
1.128 billion. This gives a growth rate of 1.38 percent. Life expectancy is 64.71 years on average,
and the infant mortality rate is, in total, 54.63 deaths/1.000 live births. Census 2001
37
According to the OECD, India during some years accepted bilateral, official development assistance (ODA) only from countries like the United Kingdom, the U.S.A., Russia, Germany, Japan, and the EU, as well as from the World Bank, the Japan Bank for International Cooperation,
and the Asian Development Bank. The Scandinavian countries and some others are since 2006
reinstated as accepted donors, and in 2005, the net ODA received was almost doubled as in
comparison to the year 2003. OECD web page India.
38
The Economist Intelligence Unit, data as of April 8, 2008.
39
Planning Commission, Government of India, 2007a. Calculated for 2004-2005, released March
2007.
40
The Economists Big Mac index (based on the theory of purchasing-power parity) is not available for India. Instead, we can allow a comparison with a Western-style caf latte which costs
about Rs.90 in any of the Indian Coffee Day-chains stores (as of April 2008).
41
UNICEF, p. 30.
33
titudes. The rural-urban divide is furthermore persistent, as is the disparity between

the States in the north of India and the southern ones.42 Poor people tend to migrate to cities and urbanisation as such results in a widening gap between different
strata of urban dwellers.
Many traditional aspects of Indian culture and social life remain powerful. Custom and superstition regarding caste mark people continuously from birth, though
less so in the urban environment and among the educated. To this comes widespread corruption, particularly high in the water supply and sanitation sectors. Over
40 percent of the respondents to a 2004 survey had given more than one small
bribe in the previous six months to falsify their water meter readings and lower
their bills. Some 12 percent of customers had made payments to public officials to
expedite new water connections.43
The GDP per capita at purchasing power parity is low in India, greatly affecting
the standard of living and matters of health. In terms of access to water, India remains a developing country rather than a newly industrialised one. Apart from
being features of under-development and failure of just distribution, all the factors
mentioned potentially lead to social unrest and are signs of deep inequalities.
4.2 Indian water woes

4.2.1 Facts and figures
The UN Intergovernmental Panel on Climate Change (IPCC) warns of melting
Himalayan glaciers and many other climate change induced effects on freshwater,
and the UN Environment Program (UNEP) has observed that availability of freshwater is going to be the most pressing problem in India during the coming decades.
UNEP summarises the stress on the water resources as a result of many factors:
urban growth; increased industrial activity; intensive farming; and overuse of fertilisers and other chemicals in agricultural production. Further, untreated water from
urban settlements and industrial activities, and run-off from agricultural land, are
given as primarily responsible for the deterioration in water quality.44
Indias utilisable freshwater resources are unevenly spread both seasonally and
topographically. The north-eastern part of the country has large perennial rivers
that tend to flood their valley regions at the peak of the monsoon, whereas the
south of India is drier and with smaller river systems that run in relatively straight
and shallow valleys. The possibilities to store water in small reservoirs known as
42
The Northern states, often referred to as BIMARU, are Bihar, Madhya Pradesh, Rajasthan,
Uttar Pradesh, Jharkhand, Chhattisgarh, and Uttarkhand. The Southern ones are Kerala, Karnataka, Tamil Nadu, and Andhra Pradesh. According to the 2001 Census, it is projected that in
2026, the former will have a population amounting to almost 610 million (422 million in 2001),
whereas the Southern states will have 270 million (as against 223 in 2001).
43
J. Davis, pp. 55ff. The survey was conducted in South Asia and included such institutions as
the Bangalore Water Board.
44
UNEP, p. 5.
34
tanks (kere, ponds, man-made lakes) were once well developed.45 Much of the
countrys water woes are due to lack of planning and regulation of these surface
water bodies. With such a high annual rainfall and large total water resources, some
of the most severe regional and temporal shortages should be preventable despite
uneven geographical and untimely distribution.
There are also regional differences in regard to groundwater. Large parts of the
Indian aquifers are unexploited and contain big reserves, whereas the water tables
are falling dramatically in many other areas.46 In the south of the country where
hard-rock conditions prevail, yields from the wells are declining, leading to competitive deepening of wells and increasing pumping costs. Especially irrigation of
agricultural land is driving the exploitation, but the groundwater tables in the cities
are falling even more dramatically as a consequence of the need for drinking water.
The per-capita availability of water in India as a whole has been assessed as
1,720 cubic metres (m3) per year in 2007.47 By international norms, a country with
water availability less than 1,700 m3 is categorised as water-stressed, whereas less
than 1,000 m3 makes it water-scarce. Various regions of India, and areas such as
the growing cities, face a bleak future in which water will be inadequate. Water insecurity is likely to be witnessed on an increasing scale and will hit the poor hardest.
Forecasts vary, but indicate approximately 1,340-1,430 m3 per capita and year in
2025.48 Some researchers are projecting a much worse scenario, though,49 while others hold that with an increase in the live storage capacity of reservoirs through
construction of new reservoirs, there will be further enhancement in the availability
of surface water resources.50
The present understanding of climate change effects in India was summarised in
2007 by the IPCC in its Fourth Assessment Report. Among its findings are that increasing frequency and intensity of droughts in many parts of Asia are attributable
largely to a rise in temperature; the cyclones originating from the Bay of Bengal and
Arabian Sea have decreased but their intensity has increased, causing damage to rise
significantly.51 Further, researchers report on an increase in extreme rains in northwestern India during summer monsoons in recent decades; but fewer rainy days
along the east coast.52 The projected decrease in winter precipitation over the In45
Agarwal & Narain.

Cf. Shah 2004a; Shah et al.
47
Central Water Commission Water Info.
48
Kumar, Singh & Sharma, p. 795; Ministry of Water Resources web page Year 2007 declared as
Water Year; cf. Gupta & Deshpande.
49
Garg & Hassan have recently suggested that the government institutions responsible are overestimating the water available for use by some 66-88 percent by double accounting for the water
in their methodology. These findings have been contested by, i.a. Jagadiswara Rao/blog, but they
point to some problems in the methodology used in assessing the size of the groundwater resources that are further discussed in Chapter III.
50
Jagadiswara Rao/blog.
51
Cruz et al., p. 473 (the IPCCs 4th Assessment), with references.
52
Ibid, p. 475.
46
35
dian subcontinent would reduce total seasonal precipitation during December,

January and February, implying less stored water and greater water stress during the
lean monsoon period. Intense rain occurring over fewer days, which implies increased flooding during the monsoon, will also result in loss of the rainwater as direct run-off, reducing groundwater recharge potential.53 Melting Himalayan glaciers
will dramatically affect access to freshwater in the short and long-term.
It is difficult to say how widely spread the knowledge of noted and predicted
climate change is. The mass-media are covering the matter of global warming regularly since 2007.54 However, most of the apparent coverage addresses the Englishspeaking (educated) middle-class audience. In terms of consciousness, a range of
institutions from the judiciary to planning authorities to village councils will
therefore need to increase awareness shortly. Measures of mitigation and adaptation need be discussed and implemented, not least in relation to access to water.
4.2.2 Strategies of access
For a majority of the people living in towns and cities in India, day-to-day survival
is based on transfer of water from areas further and further away, via pipelines
and/or tankers. This water is taken mainly from the rural hinterland from rivers
and aquifers, sometimes from reservoirs. During the summer months, it is common that even citizens with piped connections face periods during which they have
to make their own arrangements to obtain drinking water. In comparison, nonconnected urban dwellers primarily those without pukka houses and khata experience hardship throughout the year. They often need to make direct payments
for every litre of their drinking water, and yet carry it over long distances.
As indicated, India has a market where private water vendors sell freshwater
(groundwater). This supplements the public-service providers in cities and towns as
well as in the rural environment, but it also contributes to the fast lowering of
groundwater tables. As the vast majority of the landowners who pump and sell water are located outside the city centres, this phenomenon becomes an interface issue between rural and peri-/urban areas. The fact that little regulation is enacted so
far is often defended as a practicality: the scale of the problem is so vast that control and follow-up of how well binding provisions were implemented would be
profoundly difficult. The widespread culture of corruption in India (speed-money
as well as sheer bribes) contributes to the problem of effectively regulating
groundwater abstraction. This, we can presume, builds on reluctance to control
among the concerned.
Instead, most steps taken to deal with the water woes are technical in their approach. They include the search for new, untapped groundwater reservoirs; desali53
Ibid, p. 484; Gupta & Deshpande.

The awareness and debate seems to have increased significantly during the autumn of 2007,
much in relation to the December meeting of UNFCCC in Bali, Indonesia. In connection to the
meeting, R. Ramachandran, p. 32, wrote that [r]ich Indians are eating into the carbon space the
poor need for economic growth, and recent national policies have helped such disparities grow.
54
36
nation and reverse osmosis treatment; small-scale attempts at recycling waste water
(often called NeWater); more efficient irrigation systems and some promotion of
dry crops55 etc. Interlinking the national rivers is another solution that has long
been discussed among scientists and at policy level, though heavily criticised.
Much information has been provided to house owners, building contractors, authorities, NGOs and others on how rainwater harvesting (RWH) structures can be
designed to collect precipitation and recharge the aquifers;56 but though this ancient
and low-tech solution is receiving ever-increasing attention it has so far been
sparsely regulated in law.57 Court directions to governments to clear gutters and
drains in order to avoid floods in the storm-water sewer systems are occasionally
issued (but often met with factual contempt by the authorities responsible). General information to the public on how to conserve available water resources is also
spread via the mass-media, on displays and billboards, in schools etc. Relatively few
Indians remain unaffected by and negligent of the scarcity problems. On World
Water Day in 2004, the message from a groundwater expert, interviewed in the
newspaper The Hindu, was Learn to live with less water.58
4.3 Bangalore an Indian city in transition

Bangalore is the capital of the State of Karnataka and is situated in the central part
of peninsular India (on the Deccan Plateau) (Map 1), with a world-wide reputation
as the Silicon Valley of India.59 It is home to somewhere between 6.5-9 million
people.60 The pressure on Bangalores water resources is steadily increasing. This is
partly due to the great influx of people migrants settling down as well as business
people staying for shorter periods and partly because the supply is decreasing
both in quality and quantity. The public water utility the Bangalore Water Supply
55
Dry crops include maize, wheat, pulses and oilseeds rather than paddy (rice). These can be
grown under rain-fed conditions but irrigation is prevalent in dry-crop production.
56
For instance, there are the Centre on Science and Environment which publishes and educates
widely on the subject and has been awarded the World Water Prize for this and the Rainwater
Club, Bangalore which informs on and designs rooftop RWH systems.
57
Rainwater harvesting has been made mandatory for new buildings under the Karnataka Building Bye-laws 2003, No 32. For sake of comparison it can be mentioned that when the Chennai
Metropolitan Area Groundwater (Regulation) Act, 1987, amended through the Tamil Nadu Act
37 of 2002 came into force, the provisions were backed up with information campaigns and via
economic incentives, thereby reaching a higher degree of implementation. As shown in Chapter
VIII, Karnatakas rules have mainly been implemented through the Water Boards actions.
58
Lakshmi.
59
A suggestion to rename the city Bengaluru has been delayed for lack of clearance from the Union Home Ministry (as of April 2008).
60
It has proved difficult to find accurate statistical figures for Bangalores population, especially
as the sources do not indicate what is included in the definition of Bangalore. Possible definitions comprise the municipality of Bangalore (the BBMP area as revised from January 2007), or
the Bangalore Metropolitan Area as defined by the Bangalore Development Authority (whose jurisdiction as per the last Revised CDP covers the Taluks of Bangalore North; Bangalore South;
Bangalore East; and parts of Anekal, Hoskote, Devanahalli, Magadi, and Nelamangala), cf. Bangalore Development Authority web page Town Planning Department.
37
and Sewerage Board (BWSSB, hereinafter the Water Board) cannot provide all
citizens of Bangalore with freshwater, and the water taken from aquifers is very unreliable, as we will see.
Karnataka State
Bangalore
Left: Map 1. India (cut); Karnataka State.

Adjusted from Wikipedia web page Karnataka.
Right: Map 2. Greater Bangalore. Inner
field: Core city. Grey fields: former municipalities. Black field: green (nature reserve) belt area. White field: 110 villages.
Adjusted from Anonymous 2006d.
Most of the IT and call-centre businesses that are so important to Bangalore, and
an increasing number of residents were located outside the administrative borders
of the city until mid-January 2007. This entailed various kinds of inconvenience,
and eventually contributed to Bangalores boundary being moved outwards. The
merging of the core city area with its eight surrounding municipalities and 110 villages was then notified, creating the Greater Bangalore Municipality Corporation
(Map 2). With this, the already very widespread city tripled in size and became the
largest corporation in the country. Planning, maintenance, and various other tasks
related to the infrastructure of the larger city area now have a coordination potential, not least in terms of access to and supply of water.
In parallel with the process of merging Greater Bangalore, the Greater Bangalore Water and Sanitation Supply Project was implemented. The main aims were to
provide piped water from the River Kaveri (Eng. Cauvery) to all of the former municipalities where most of the inhabitants used to rely on groundwater extraction
and to reorganise the finance and management of the service. The Kaveri, which
is a major water source for Bangalore, is 100 km away and some 500 m lower, and
this makes distribution costs very high. In addition, the river is shared with three
38
downstream States and is therefore the object of a century-long dispute handled by

the Cauvery Water Disputes Tribunal since 1990. As will be shown from the problems of access in Bangalore, water management at river-basin level must also take
the broader context into account.
5 Aim of the study, research questions

The overall aim of the study was to analyse critically the role of rights and obligations in
attaining improved access to water.
The notion of rights, while often referred to in the general water management
debate, seems to allude to various rights simultaneously. A multitude of dimensions
exist, where the human right to water is to be distinguished from water rights and
property rights in water resources.
To provide a background for the analysis, questions relating to how rights and
the instrument of law matter and are understood in practice are pertinent. Therefore, the research included a study of a specific geographical location to find out
both how access is realised in the rural, peri-urban and urban contexts and how it is
affected by urbanisation and similar processes. This empirical part of the study focuses on the situation in Bangalore in southern India, a metropolis that is subject to
change and transformation and suffers from water scarcity.
I have probed the following:
- What different meanings are assigned to the notion of rights in law in general,
and in discourses on water management?
- Is there a (human or other) right to access to water? How are the corresponding obligations formulated and fulfilled?
- Whose is the water in the language of law and how is this issue regulated and
discussed?
- How can the notion of water rights be understood?
- Where there are different kinds of rights in relation to water, do they converge
or oppose each other?
6 Outline of the book

This book is divided into three parts, with the following disposition:
Methodologies and reflections about conducting the study are presented in
Chapter II. Next, the water-related and other conditions of Bangalore are analysed.
This includes a deeper account of the importance of surface-water bodies the
tanks and the River Kaveri historically and today. The increasing role of groundwater and the pressure on this resource are discussed from the point of view of insecurity: how precarious is the situation? We then look closer at the Kaveri River
dispute and the Final Order of the Tribunal set up to solve this.
Chapter III also discusses aspects of poverty and (peri-)urbanisation, and how
these and other factors are of relevance for the access to water. The case of Bangalore is special here as the city has recently undergone an administrative expansion.
39
In the second part of the book the focus turns to the notion of rights. Against a
traditional understanding of law as either including or excluding moral aspects, we
consider in Chapter IV if, and how, the meanings assigned to law and rights differ between the Western and the Indian context. Where much of the legal systems
in Western jurisdictions is characterised by legal positivism, the case is somewhat
different in the post-colonial, rapidly developing yet often conservative country that
is India. We must acknowledge the many facets of its historical background, the
pluralistic and religious society, the remains of English common law and influences
from international environmental law.
Chapter IV also includes an account of the Public Interest Litigation instrument
and how the Indian judiciary has borrowed a number of foreign principles in order
to develop the law.
Next, we explore the rights-talk in relation to water for drinking and related
purposes. Based on the relevant contemporary discourses but most of all on the
Indian context, the topic is presented as having three interlinked dimensions: the
right to water as a human right; water in terms of property rights; and water rights.
Hence there are different kinds of right relating to water and they partly converge,
but partly also stand in opposition to each other in the sense that they represent
competing uses. The different dimensions will be generally portrayed and analysed
in Chapters V, VI, and VII, respectively. In short, the three dimensions have the
following characteristics:
The right to water as a human right (Chapter V): The discourse on a human
right to water stems from the 1977 UN Water Conference in Mar del Plata, Argentina. It received relatively little attention until the UN Economic and Social Councils Committee on Economic, Social and Cultural Rights submitted General
Comment No. 15 on the matter in 2002. The most evident development during
these decades, at least on paper, is that the rights-talk is now accompanied by more
concrete discussions on duties and duty-bearers, i.e., the role of state governments
as well as private parties in fulfilling their obligations to provide safe drinking water.
Though steps are thus taken both in policy and practice, differences still prevail on
how to interpret the existing international law and whether to acknowledge a right.
Water in terms of property rights (Chapter VI): The second dimension of water
in terms of rights deals with property. Due to natural conditions as well as traditional conceptions, water is intrinsically linked to land and therefore also to landed,
so-called real, property. We will look at water resources status as res communes since
the day of the Romans, and the riparian rights doctrine. Property rights in groundwater are furthermore fundamental for access to water in times when the interface
between the rural hinterland and the city is of increasing significance.
Water rights (Chapter VII): This notion can, in turn, be understood from several perspectives. A right to use water can be acquired via customary law, prescription, or an agreement between parties. A right can sometimes also be laid down by
way of court order. Further, certain aspects of our water resources are regulated
40
under statutory law and a water right in the form of a licence, permit or the like
must therefore be granted by the authority responsible.
A right to use water is one of many instruments the legislator has to distinguish
use from abuse, but perceptions of when certain use is legal, lawful and socially acceptable can differ between legislator and concerned users. In the literature on water rights, one also finds a discourse about de facto rights, and on legal pluralism.
These facets will be analysed in the chapter.
In the third and final part of the book we return to the situation in India and
Bangalore to apply the three dimensions. After examining how the human right to
water is interpreted by the Indian judiciary and in statutory law, we look at the role
of Bangalores public water utility in effectuating the right to water in Chapter VIII.
Given the dynamic transition that Bangalore is undergoing, the provision and supply of water are regulated and carried out in an environment subject to changes in
several aspects. Legislative reform is needed for the human right to water to be ensured for all.
The other two dimensions of rights are also followed up. Chapter IX deals with
Indian property law and rights in groundwater and aims, foremost, to investigate
whether a landlord is indeed a water lord. There are few legal sources on Indian
property rights in water and to comprehend them we are forced to trace the roots
back to English, American, even Roman law. A critical reading of the present discourse on groundwater as a natural right and subject to ownership is offered.
In Chapter X, we look anew at the concept of water rights. The role of Water
Users Associations will be treated against an understanding of social norms, local
rules and traditional practice. The Kaveri River dispute is analysed in more detail.
The final chapter aims to marry the three dimensions of rights over and to water in the Bangalore situation, concluding that we need to take rights and obligations seriously. A reform of mindset is inevitable to improve access to water.
41
Chapter II
Methodological aspects
1 Researching water management

1.1 Interdisciplinary research
The complex water-related problems and issues in the world today need a broader
understanding and must be considered from different angles simultaneously. This,
in turn, necessitates simultaneous integration of knowledge, values and methods
from several academic disciplines. It also calls for researchers, policy- and decisionmakers, communicators and others to embrace an unconventional mind-set. Sometimes this will result in Kuhnian paradigm shifts (such as the joint work of the
IPCC), sometimes in less dramatic but likewise important steps towards thinking
and acting along new paths.
For this study, I chose to go outside the traditional framework of my disciplinary background in law, as my firm belief is that complex water-related problems
cannot be solved without an interdisciplinary approach. My definition of interdisciplinarity61 is that methods, concepts, theoretical points of departure, etc., from
several different disciplines are integrated in the research process in an endeavour to further understanding by a more holistic approach to the inquiry. Hence, all stages
from formulating research questions to choosing methods, analytical tools and
theoretical framework; and carrying out the study, should be influenced by systems
thinking. Interdisciplinarity may be driven by scientific curiosity or practical
61
A range of definitions is at work, and a distinction is generally made between inter-, multi- and
transdisciplinarity, although in different ways by different scholars.
42
needs, as the National Academics Sciences et al. put it,62 and should strive towards
an active development of notions and expressions.63
Interdisciplinarity has its benefits and hurdles. Among the former comes the
freedom one can take in everything from practical elements to finding support for
hypotheses among scholars from a variety of areas. Interdisciplinary research will
obviously be different, though not necessarily better, if conducted by a group of
people who contribute with a range of competences and experience and who can
eventually marry their fields to generate a new whole; but the PhD study in social
sciences is often a lonely task and the end-product with the misconceptions that
may occur will therefore always be attributed to the actual student performing it.
I believe that the interdisciplinary approach can be followed in studies by an individual researcher, although many definitions of the notion seem to presuppose a
whole team.
In practising interdisciplinarity, values enter into scientific theory and data collection [for instance] through scientists hidden assumptions about disciplines other
than their own and through roadblocks created by the organization of academia.64 Although concerns about shared values, thinking collectively, etc., might be
a greater challenge in a group conducting interdisciplinary research than for the
lone academic, it is worth reflecting on the various barriers specific to this kind of
knowledge production. Sharachchandra Ll and Richard B. Norgaard have identified
four types of barrier. Among the more important issues they point to is the difficulty of acknowledging hidden values in the context of contentious and highly
complex social issues typically sustainable development, climate change, and water resource management where decision-makers call on scientists to provide objective advice.65 Ll and Norgaard suggest bridges over these barriers, such as linking natural science to social. They demonstrate that most natural scientists have
been trained to believe that (their) science is value-neutral, and how a defensive response is likely from the same group when this belief is exposed or questioned.66
Ll and Norgaard exemplify this from a workshop aimed at exposing economists to basic hydrology. A hydrology expert introduced the concept of groundwater potential and sustainable utilisation, where the latter was defined as the situation in which groundwater extraction does not exceed groundwater recharge. The
authors write that at this stage, an economist pointed out that this definition was
debatable, because
if communities living in the upper part of the watershed (typically where most of
the rain falls and recharge occurs) were to extract the entire recharge, it would
leave no water for downstream communities or for base flow in the river.
62
National Academy of Sciences et al., p. 2.

Cf. Sandstrm et al., p. 16.
64
Ll & Norgaard, p. 967.
65
Ibid, p. 968.
66
I would like to add that this seems to apply also to classically trained economists.
63
43
According to the authors, the hydrologist took quite some time to understand the
empirical point being made and, even then, insisted that the official definition of
sustainable extraction was correct.67 What we can learn from this is that few
definitions or methods are altogether irrefutable or incontestable: they are constructed from observations and sometimes it takes a layperson to question whether
the emperor is wearing any clothes. Interdisciplinarity is therefore well suited to
combating conformism and shedding new light on established truths.
Another kind of difficulty with writing a dissertation that can probably be classified onto different library shelves concerns the contemplated readership. For
whom have I written? The primary addressee is a person devoted to water management in the Indian and similar contexts. I am a jurist, and those with the same
training as I might recognise and appreciate more in this text than others; but I
hope to reach a wider audience. However, many readers will presumably not have
knowledge of law,68 or be acquainted with the Indian setting. Likewise, there is a
risk that the hydrogeological and general water policy terminology is unfamiliar to
many. On the contrary, certain aspects might seem trivial to some readers, such as
(parts of) the thorough account of legal method and of general property law given
below. The challenge has been to make this text generally accessible to everyone
with an interest in water management in the chosen context, but it is inevitably an
academic piece of work.
Another indisputable benefit of conducting an interdisciplinary study is that it
allows for the collection of data from other sources, and with the help of a larger
variety of methods, than an intra-disciplinary one might. It can be termed an eclectic or pluralistic approach: selecting the elements that seem best from various
sources, styles, doctrines, ideas, methods, etc.69 Accordingly, my research was performed partly from my desk via electronically accessible libraries and databases, and
partly through discussions at conferences in Sweden, elsewhere in Europe, and in
India. More importantly though, and as will be discussed below, it also brought me
to the sites under study to remote, tranquil villages and to the congested, noisepolluted, and cramped but charming streets of metropolitan areas such as Bangalore, Chennai, and New Delhi. The combination of locations and spheres from
which I have acquired my knowledge has naturally enhanced the possibilities for
deeper and more grounded comprehension.
1.2 Taking a (mainly) qualitative approach

I developed and adapted the research questions of this study as the work progressed: as they should, increased understanding and not least field visits made
me reflect and revise. The formulation of the questions was thus a process inspired
67
Ibid, p. 970.
Hopefully the use of a Latin legal word here and there will not scare away too many readers,
since such are legal-technical terms dressed in a language which is shared among jurists in a majority of the worlds legal systems.
69
Cf. Punch; Johnson & Onwuegbuzie.
68
44
by the explorative research approach and the hermeneutic circle. The information
and data used have often been triangulated to test their validity, e.g., statements expressed during an interview might have been compared with another source such
as an interview with someone else and/or with governmental documents, and vice
versa. The purpose has been to reach understanding of certain phenomena, of peoples values and their own understandings, of prerequisites and prospects because
many of the problems of freshwater scarcity and access/supply are socially and culturally coloured. This has called for a hermeneutic point of departure and a qualitative research approach: an interpretative attitude towards peoples actions. However, for this study I have also spent considerable time locating quantitative data in
terms of numbers and figures, for instance regarding population growth from the
census of India, about the Kaveri River, and for hydrogeological reasons. I found
more than once that irrefutable, incontestable data rarely exist, and that one and the
same Indian authority can give very different information. Again, comparing data
from various sources was the key, but not always sufficient.
Coming to India as a foreigner means seeing conditions and problems with an
outsiders eyes. This has several advantages and disadvantages. As far as possible I
have taken into account that my perceptions are influenced by the different experience, cultural background, situated knowledge, and pre-understanding that I carry
with me, recognising that a totally neutral point of departure is impossible.
The qualitative methods have been described as
procedures for the analysis of raw data that consists of words or pictures rather
than numbers. These raw data can be pre-existent, as in historical documents, or
created by the research process, as through interviews. In qualitative research,
data-collection and analysis methods are not standardized but unique, often with a
variety of methods being used in an iterative fashion that fits the peculiarities of
the research problem.70
The data collected here is qualitative in that it departs from what has been thought,
said and written or otherwise represented and expressed, such as in maps, pictures,
constructions, products, and symbols. This data all of which can be described as
text has a social context against which it has to be read; and according to hermeneutic theory the meaning of the text can be interpreted to give directions for future research steps. For instance, when analysing legal texts, the interpretative element is very important.71
Much of the analytic reasoning made here in order to draw wider conclusions
can be termed inductive. As formulated in an anthropological textbook, [i]nduction consists of going out there, watching and wondering, collecting information about what people say and do. Deduction consists of attempts to account for
facts by means of a general hypothesis or theory.72 Via empirical observations in
70
Aunger & Dow, p. 386.

The hermeneutic approach in legal research is often read as similar to Ronald Dworkins interpretivism, but many others have also worked with this approach, e.g., H.L.A. Hart.
72
Eriksen, p. 18.
71
45
and of specific situations, and by inference from arguments drawn from different
sources, insights have deepened and the possibility has arisen to make more generalised predictions. In legal reasoning, both induction and deduction are part of the
traditional method, as will be shown below.
Several of the methods employed have instrumental value in their own right,
but they also complement each other. As an example it is worth mentioning the
synergy effect between the traditional methods used in studies of law and of anthropology (and sociology). As mentioned, I spent quite some time in the field
not only to collect legal material but additionally to understand the conditions under which the Indian legal system and culture work and function. This has given
possibilities to make my own personal observations related to water use and everyday practices, to peoples conceptions of rights and justice, and to rhetorical and
political manoeuvres.
The methods and empirical material used are treated below. A general part is
followed by a part on the legal empirical material and the methodologies used to
collect and interpret it.
2 Methodological paths and tools

2.1 Presence without pretence: choosing Bangalore
The real issue is not whether the fieldwork method is valid and scientific compared to other methods. After all, all methods are tools. The real issue is to mark
out the precise role for fieldwork in the gigantic goal of cultivating meaningful,
sensible and useful knowledge about a large, complex, and rapidly changing society such as India.73
This study involves an analysis of Bangalore city with its peri-urban and immediate
rural surroundings. A decision to frame the study geographically in this way was
taken for the purposes of illustration and delimitation. By investigating a particular
place or setting in some detail, I sought to obtain a material reality against which to
analyse abstract issues such as the role of law in improving access to drinking water.
Furthermore, my own understanding of water access and supply problems, as well
as of institutional decision-making, could only be deepened through making hydrogeological and administrative limits, jurisdictions, and other relevant spatial information visible. To comprehend, e.g., the question of water transfer and diversion
schemes, one needs to take into account the interface between the urban, periurban and rural dimensions. Awareness of catchment-area and basin-wise approaches builds on such comprehension, and on the possibilities to visualise such
data and give them a kind of meaning.
The choice of Bangalore generated a number of questions about specific conditions, as well as providing particular answers. The study enabled me to support
73
Srinivas, p. vi.
46
various reflections in a real situation, one that was dynamic and subject to highly
relevant changes. Most important was the prospect of looking for perceptions,
practice, and the law in action beyond the law in books. From this I could answer
questions on the role of law and rights as an instrument to improve access to water,
and better understand the impact that various legal norms and provisions have in reality.
I initially told myself that such a study could probably have been performed in a
number of other countries or cities: there are unfortunately too many places where
the circumstances and problems outlined in the previous chapter prevail. However,
as the empirical data piled up, it became evident that the Indian situation, not least
in terms of the legal system, is most unusual, and that Bangalore is also one of a
kind. Bangalore is hence not entirely representative of an Indian city, or even of a
city in rapid transition but there are many factors from which to draw generalised
conclusions, as will be clear throughout the study.
What, then, made me choose Bangalore? As is so often the case in research and
science, coincidence and contacts came to be decisive. Initially, long-standing cooperation between Professor Jan Lundqvist, then at my institution, and his counterparts in India, led me to the southern part of the country.
From insights drawn during the first year or so, the question of a reliable local
partner became more pertinent. An important factor behind ending up in Bangalore was that I found the National Law School of India in Bangalore, and then became affiliated with Oxfam India (which changed its name to Svaraj in 2005). This
rights-and-equity-based organisation has its head office in Bangalore and is working
on a water programme in the Arkavathi sub-basin to the north of the city, on research in connection to food security, on strengthening community identities, and
on the understanding of water as a fundamental human right.
As the study developed I decided to concentrate it geographically to Bangalore
and its immediate vicinity. This had to do partly with my attempt to pinpoint some
interface issues between the urban, peri-urban and rural. I early found it important
to take a larger perspective, not only to focus on village or city level; it became obvious and visible how the urban and the rural are inter-connected spatially and
time-wise (with the growing peri-urban areas in between) and that there was a need
to treat water rights issues likewise. Since Bangalore is growing so fast that former
rural sites would become peri-urban, and even fall inside the administrative city limits, within the time of the study, it fitted well for the purpose.
Work on the dissertation made me spend altogether almost a year in India during four visits, each between two and five months long.74 As Mats Hannerz describes, it was a matter of being there and again! and again! returning to a
known although probably changing scene.75 I needed a certain level of understand74
I also made a two-week pre-study in 2003.

Hannerz, p. 213. All in all, the inspiration comes from the discipline of anthropology. Bronisaw
Malinowski established the method of collecting information through fieldwork and participant
observation in the early 1900s. The researcher should preferably reside in the area together with
75
47
ing before I could begin to interpret what I experienced and read, and this in turn
required me to spend time in the area at large. Drought, floodings, everyday scarcity, insufficient infrastructure and scattered institutional frameworks for access and
supply are something one can perceive quite forcibly during the first couple of days
in India, even as a privileged foreigner to whom water and food security are normally non-issues. Nevertheless, countless aspects of Indian culture and the general
system (including the legal) made sense to me only after many months in the country. Other facets may not become clear to me in a lifetime. In any case, the benefits
of having been present cannot be overestimated, and this goes especially for the
possibility of carrying out the research at several different locations in and around
India, though with focus on Bangalore.
2.2 Interviewing and observing

Few standards and methodological procedures are common for all qualitative interviews. This variety reflects the spectrum of human conversations.76 In the present
study, several techniques were combined to collect data, impressions, descriptions,
narratives, opinions and meanings. The design varied according to what kind of
material I thought I needed to answer my specific research questions and to
prompt new reflections and according to what was practical. Semi-structured interviews were suitable and their number was relatively limited (just under 30).77 Numerous unstructured conversations also took place, and both kinds of encounter were
supplemented with general observations made in situ.
For the interviews conducted in villages, peri-urban areas and slums, informants
were often chosen via sampling, a way of deciding from whom, within a larger
population, one wishes to collect information [that] allows the researcher, depending upon her or his purpose, to deal with information from a set of people representative of the population, or a set of people which represents various specified
kinds of diversity, whether economic, religious, linguistic, generational, or gender.78 The informants were thus not necessarily chosen for their general representativity. Some were picked beforehand because they had certain positions and decision-making powers a fair selection which was biased in the sense that I intentionthe people under study, for at least a year, communicate with these informants in their own language, and aim to grasp their points of view on everyday life. The ideal might still be to conduct
observations during a prolonged time-frame, but its the length can be a matter of months and the
participatory element can be carried out in a number of ways apart from staying in the field,
such as following a group or a system via Internet. Furthermore, multi-site ethnography is now
accepted, the goal seldom being to study an entire population or a full range of aspects and
there might not even be a holistic ambition, Hannerz, p. 209. Cf. Gupta & Ferguson.
76
Kvale, p. 13.
77
Some of the interviews were made with groups of people, but counted as one. Most of the material from around ten interviews, made during January-February and December 2005 in villages
in Duddaballapur and Devanahalli, was lost due to a computer hard disk drive crash. These interviews are not therefore listed in the bibliography and not referred to.
78
P.C. Salzman, p. 365.
48
ally sought to meet women. This was supplemented with the snowball method; via
referrals from, e.g. initial informants to generate additional participants. The drawback of both methods is that the sample will fail to represent a good cross-section
of the population, as those well-connected within a network are favoured.
Another way of finding informants was by entering a residential area including
slums in a part of the city or a street that I or my interpreter had been told about
(a kind of snowball effect again).79 Usually, many women and children are around
during daytime. My prime aim was to gather information and personal narratives
about the conditions for water supply, what strategies were employed for attaining
access to water, and what people thought and knew in relation to these issues. I
also wanted to look closer at houses and huts, and see whether wells, standposts
and/or taps existed.
For some of these interviews I sat down with one or several persons for a couple of hours, often in their living or working environment, and let the conversation
circle around the particular theme. At other times I walked around, asking various
persons about how things such as water supply were organised and perceived to
work in the neighbourhood. I felt free to improvise around the answers and topics
that came up, and to continue with follow-up questions when necessary. Sometimes I had prepared sheets that I filled out. These sheets, and hence the questions
asked, mostly started with basic data such as name, age, family situation, housing,
how long the person had lived in that place; main occupation and income opportunities. Depending on how the discussion developed and how willing to talk the person was, I sooner or later went on with more open-ended, in-depth questions, or
went on to talk to someone else.80 I relied on my intuition regarding whether
enough trust and rapport had been established before beginning with the interviewing as such, and did not encounter any difficulties in getting access to my informants.81 Now and then I got rather monosyllabic answers, or felt that informants
seemed eager to give idealized descriptions of their own achievements. Cultural differences, perhaps, but I might also have been perceived as someone who wanted to
79
During the first field trips I assumed I needed a guide from any of the NGOs working in the
slums and knowing people there. However, no-one wanted to take a white researcher, maybe because this could have affected their own credibility. I respected this and it was not until the last
field trip that my interpreter and I realised that there was no need for a guide to introduce me and
the aim of my study.
80
Some interviews were conducted in villages during the third field trip, with help from members
of Oxfam India/Svarajs Arkavathi team. These helped me immensely in understanding the conditions of village life, and to compare the intentions of the legislator behind the law on Panchayats
with what applied in these villages. In the end these interviews were not included due to the way
in which the study as well as the city progressed and changed.
81
The areas I visited in and around Bangalore are not very backward in comparison to the remote
rural environment one can find in Indian villages. Dressing as I did in salwar kameez like modern
Indian women in the larger cities do helped me to be accepted. In addition, being a vegetarian
earned me many appreciative comments.
49
check on what they had attained.82

The representatives of authorities and administrative departments whom I met
in the urban and peri-urban areas were, with two exceptions, men. I generally posed
individual questions that related to their functions and tasks, and the mandate and
objective of the authority; but also about their own views. I mostly approached
these informants directly, via telephone, e-mail, or at conferences and the like, but
more often I simply turned up or was shown into an office or introduced to a person by someone else.83 I met officials at several levels, including people elected to
the municipalities at ward level (the equivalent of the Panchayats, elected village
councils) in Bangalore, and in Duddaballapur in the northern outskirts. I also
spoke to officials and researchers in Chennai and New Delhi and elsewhere.
Apart from the semi-structured interviews, a large number of informal conversations and discussions took place, in all sorts of situations and locations. Ordinary
water users constituted a target for many questions: just about everyone I met
could be subjected to informal inquiries. A number of peoples working in public
institutions, universities, and NGOs thus provided me with interesting facts and
perceptions.
The observations I made in India generated fundamentally important insights.
Both people and things (and cows!) were watched, listened to, or overheard as I
rode the local bus or took an auto rikshaw to the office, walked around the streets,
visited institutions and authorities, rode to the field, and so on. In this way I
learned about so-called illegal tapping from rivers, private water deliveries via tankers and bullock carts, lack of public taps in the cities, and other dimensions of peoples everyday practices, conduct and values. In this respect I did not feel that ethical considerations would oblige me to tell the people explored that I was doing research, although such hidden or unobtrusive observations do not give the objects
of investigation a chance to refuse to take part.84 I justify this by noting that the observations were made in public places.
Living as a PG (paying guest) during my two longer field periods in Bangalore
further brought unique opportunities to follow upper- and middle-class families
who were aware of water and energy issues in their (our) daily practice of storing
and conserving water, boiling or otherwise treating what was needed for drinking
and cooking, struggling with water and electricity cuts, etc. Generally, this afforded
observations of a non-systematic and indirect kind, but many of my study-related
82
One reflection afterwards relates to Steinar Kvale who asserts that [t]he qualitative research interview is theme oriented. Two persons talk together about a theme that is of interest to both (emphasis added), p. 29. I am not convinced that all of my informants actually took much interest in
the topics that were of concern to me.
83
Contrary to what could be anticipated, I was almost always welcomed without much delay and
had relaxed discussions with the officials who expressed happiness in that I took interest and had
knowledge in the field. Being a white, well-educated and outspoken yet traditionally dressed
female seemed to be of great advantage in these situations.
84
Eriksen, p. 15.
50
topics were also discussed with various family members. Both kinds of information
fed my understanding in an invaluable way.
I followed the pertinent development of events in Bangalore till early 2008, but
my last field trip ended in February 2007.
2.3 Interpreters and interpretations

An important aspect of the interviews was working with interpreters to communicate with the interviewees. In the villages, some of the women I met could understand a little English, but practically no-one spoke it. This was what I had expected,
since several of them were taking literacy classes as part of their Panchayat training.
When talking with informants in municipalities at peri-urban level there was also
sometimes a need for translations. In general, these women spoke or could at least
understand several idioms, but English, the language of the imperialist rulers, was
not among them.85 Relying on translators might result in greater difficulty in establishing rapport, and the risk of misinterpretation and distortion in the translation
and analysis process also becomes greater when working with a third ear and
mouth. Conversely, and positively in my case, the interpreters assisted me as cultural and contextual guides. I chose to work only with female translators, believing
that this was a prerequisite for making the women I met more relaxed.86
Another methodological aspect of interviews concerns how to conserve the responses, for memory is weak, notes are selective and transcription of verbatim recordings is usually unmanageably arduous or expensive.87 Some of the conversations were audio-recorded, either instead of taking notes or to supplement writing.
However, I found that the recording was often practically useless mostly for audible reasons such as that there were disturbances from a loud fan in the room,
heavy traffic or other noise, or surrounding peoples voices mixing with my informants.88 At times I refrained from recording because the subject discussed was
(perceived as) too sensitive. In addition, and maybe more importantly, I sometimes
felt that my relatively expensive electronic gadgets might create a barrier between
the people I met and myself. I often chose to rely on my memory and notes, including field notes and random diary entries and to risk not having exact accounts of what had been said rather than using the recorder.
The analyses and interpretations of the interviews, conversations and observations followed an eclectic, ad hoc method. This is the most common, according to
Steinar Kvale, and it implies that [a] variety of commonsense approaches to the in85
The fact that knowledge of the languages of the southern states the Kannada of Karnataka,
Tamil of Tamil Nadu, Telugu of Andhra Pradesh, and Malayalam of Kerala was so common
where I was, together with the fact that Bangalore is a city with many immigrants from the
neighbouring states, made me give up my ambition to learn basic phrases in the local language.
86
Initially I aspired to find translators from the same communities as the informants, but I soon
realised that this was a futile attempt.
87
P.C. Salzman, p. 366.
88
As mentioned, I also learnt the hard way how data tends to get lost every time the computer
hard disk drive crashes.
51
terview text can be used to bring out the meanings of different parts of the material.89 It is indeed a comfort to have such an authoritative scholar as Kvale acknowledging, even allowing, an analysis technique that does not make believe that
everything is (can be) altogether organised. Although most research is probably
pre-systematised in that there is a plan for dealing with all the collected data, the insight might eventually come that the wide range of informants, settings and more
or less messy information calls for an equally wide approach to the mode of interpretation. I believe I followed Kvale whole-heartedly in seeking to bring out various meanings without applying certain methods staked out for this purpose.
The literature suggests that the relationship between a particular verbal response
and some other, non-verbal behaviour may be unclear.90 Informal conversations
and discussions may further give responses that vary with the researcher, the setting, the occasion and even with the interpreter. The concept of translation becomes important here; the researchers analytical and often very abstract concepts
must be connected to the alien social and cultural world being investigated.91 Interview outcomes will always be subject to the interviewers own tacit pre/understandings and situated knowledge: there can be no such thing as an unbiased
interpretation. In studying life-world phenomena closely connected to the informants everyday reality, one has to be impartial towards other peoples own, personal, perceptions of the truth, thus respecting different statements as relative, localised claims that make up representations of discourses. All the same, this was
one of the methods I used to reach knowledge, to reach my truth.
A decisive factor for conducting interviews and observations such as the present
ones is a guide to and/or an interpreter of the unfamiliar physical, cultural, etc., environment. This was made possible through devoted people working with Oxfam
India/Svaraj. Throughout my two long field visits, I was blessed with a multilingual
person whose background was very diverse and who, not least importantly, gradually took as much interest as I myself did in many of the issues under study. As well
as functioning as a good driver, she had the invaluable capability to take initiatives.
Nevertheless, this kind of person can probably not be found through methodology
or even long experience of conducting interviews. It comes down to surrounding
oneself with a good network, and to sheer luck.
2.4 Material from other sources

As well as information gathered as described above, I have made use of newspaper
cuttings, foremost from the Indian daily papers The Hindu, Times of India, and The
Deccan Herald (mostly the Karnataka editions); maps and atlases, photographs, statistical data, official documents issued by governmental bodies including the
mandates and authorisations empowering these bodies pamphlets and conference
material, etc. Textbooks, scientific articles (some of which peer-reviewed) and lit89
Kvale, p. 193, and cf. pp. 203f.

Salzman, p. 364.
91
Eriksen, p. 24.
90
52
erature contributed in the conventional manner and magazine articles and contemporary novels have given insights into the Indian culture of today. Various encyclopaedias have been used, including Britannica and the daily-improved Wikipedia, and a range of other sources readily available via the Internet.
I collected maps, master plans, watershed atlases, etc., on Bangalore and its surroundings from bodies such as the Karnataka State Remote Sensing Applications Centre,
the Central Groundwater Board, the Karnataka Governments Department of Mines and Geology, and the Bangalore Development Authority. Many but futile attempts were made to
find maps in which both administrative borders and hydrogeological conditions
were marked.
In addition I needed information about hydrogeology in general and the Bangalore area in particular, to help me in my contextual analyses of the applicable
groundwater law. I found one scholarly book of recent publication date but containing almost-outdated information and received only little help in the libraries of
the departments concerned. In New Delhi, I was told by one of the Heads of Department at the Central Groundwater Board, that they sent all their hydrogeologists
to the U.S. for educational purposes. As knowledge of hydrogeology is rather universal I ended up taking an academic course in groundwater management at the
Royal Institute of Technology (KTH) in Sweden, supplementing this with what I
could find about the hard-rock conditions that prevail in Southern India via knowledgeable people at the Geological Society of India, situated in Bangalore.
In the highly sensitive case of the Kaveri River, one of the few facts that seemed
undisputed was that the Disputes Tribunal was set up in 1990. In my search for
general and specific data on this whole matter, variations to practically all the facts
were discovered and this, naturally, affects the views taken and the conclusions that
can be drawn. I perceived the reliability of sources such as the mass-media and
various web pages as low to medium-high, and attempted to consider who the informant was. Yet I did not want to dismiss these sources, partly because there was
very little clearly unbiased material to be found, and partly because articles in the
media, in Wikipedia, etc., represent the information which the general public get
hold of, and from which they form their perceptions.
3 Researching law
3.1 Introductory remarks
Legal science implies a legal method, in that there can be no science without
method [but] If science is a constructed representation of reality, how do the
methods and procedures of science relate, if at all, to reality?92
Jurisprudence can be seen as the theory and philosophy of law, concerned with,
among other things, the question of how to acquire knowledge of law and legal
92
Samuel, p. 95, with references.
53
systems concepts that in turn lack set definitions. It is generally held that every
(democratic) society needs some degree of predictability, and under the rule of lawideology the courts application of law shall satisfy standards of uniformity, foreseeability, etc. by following a number of methods and rather technical established
principles. Much of the methods for analysis within and outside the courtroom
centre on legal sources of knowledge and argumentation, and the weighing of these.
These methods have developed largely in relation to dispute settlement and, ultimately, in the court situation in which judges decide the case. The academic jurist
must, however, use a range of methods in addition to the conventional rules of interpretation. As will be described, it was imperative for the present purposes to collect various forms of legal material via a combination of methods.
In this section, the methods used will be addressed along with aspects of a traditional legal method, e.g. the definition and ranking93 of the legal material into primary and secondary sources. Aspects of jurisprudence are analysed in Chapter IV below, including how legal positivism determines the frameworks for construing
statutory rules, and the role of natural law in relation to a human right to (access to)
water.
Before discussing the methods for researching law it will be necessary to point
out that there have traditionally been large distinctions between the two major legal
traditions known as common law (Anglo-American) and civil law (the RomanoGermanic law of continental Europe). These differences have emerged mostly in
terms of historical genesis, fundamental principles and procedures and primary authoritative sources. The basis of common law is the body of binding precedent, created by judicial decisions in individual court cases and embodied in various case reports and records of past trials. The basis of civil law is the codified binding rules enacted by legislatures and mandated bodies in the form of statutes (acts, rules, byelaws, etc.). The often quite abstract rules of the latter system are applied and interpreted by judges and legal scholars; but interpretations from courts are not formally
binding.
Today, no jurisdiction probably applies a strict common-law approach; bodies
of written law enacted by the legislator will be found in the area of public law
(which governs the relationship between the individual and the state) and most
likely also for the regulation of modern problems such as environmental protection. In other words, what used to be common-law systems are nowadays mixed
systems of law. This approach is visible in both the United Kingdom and the
U.S.A., although their systems are still characterised as founded on common law. Simultaneously, the role of court decisions becomes of yet larger weight in many
fields of the civil law culture.
India is an example of a system that, as a whole, has in fact always been mixed.
During colonial times, English common law was imposed on an indigenous system
93
Certain principles have developed concerning the sources relative importance. E.g., according
to one maxim a more specialised and precise statutory rule takes precedence over another, more
general, in case of them being contradictory (lex specialis legi generali derogat).
54
which already consisted of customary law, religious norms (so-called personal law)
and local rules. Even prior to Indias Independence in 1947, the English Crown
adopted statutes in various fields. This mixture was later to be influenced by features of the civil-law system. This is noticeable in for example the adoption of the
Indian Constitution in 1949 and in the incorporation of international principles of
law into Acts of the legislature. The bulk of Indian law stems, however, from court
decisions. As will be shown, the human right to water in India rests on the Supreme Courts interpretations of an abstract Constitutional provision.
3.2 Primary and secondary legal sources

Most legal systems distinguish between primary and secondary legal sources, although these terms are defined differently in general jurisprudence in comparison
to, e.g., the law of the European Union. As mentioned, the primary source of legal
knowledge in common law is the bulk of binding precedents (case law, judicial decisions). When statutes and regulations have been enacted, they constitute another
primary source. Correspondingly, the very primary source in civil law is the statutory, codified rules and regulations, including administrative decisions. In addition,
civil law contains primary sources that are not binding but considered as authoritative. Foremost amongst these is case law.
Secondary sources are used in both civil law and common law to guide jurists,
lawyers and judges concerning what the words and language of a primary source
are generally to mean. Commentaries, dictionaries, hand- and textbooks, and legal
encyclopaedias are invaluable in this regard. (Legally) non-binding directions for interpretation can furthermore be gained from preambles to the statutory text. In
some countries the travaux prparatoires, preparatory work to statutes, are recognised
as a secondary source for understanding the legislators intent or the purpose of the
legal text (it is probably only the Swedish legal system that accords the preparatory
works, frarbeten, binding status). Customary law (legal custom) can be a primary or
a secondary source, depending on the legal value ascribed to it ad hoc by a court.94
Doctrines and maxims (the teachings of the most highly qualified publicists of
the various nations as the Statute of the International Court of Justice, Art 38
formulates it) can further function as a subsidiary means to determine the applicable rules of law. Writings of legal scholars are often found in peer-reviewed (or
equivalent) articles and other academic treatises.
For the purpose of this study, secondary sources such as Halsburys Laws of England, Halsburys Laws of India, and Divan & Rosencranzs Environmental Law in India
are some of the handbooks and textbooks that proved fundamental as starting
points from which to seek further information. The Stanford Encyclopedia of Philosophy
was also very useful. I further found and collected a number of primary sources.
Some court decisions could not be located, though, and I had therefore to take information about their facts and ratio from secondary sources mentioning them.
94
Customary law is discussed in relation to local customs and practices in Chapters IV, VII
and X.
55
The primary sources include, but are in no way restricted to, the following:
the Indian Constitution, and various Amendment Acts to it;
statutory law and regulations, e.g., the Indian Easements Act, the Karnataka
Panchayati Raj Act, the Water (Prevention and Control of Pollution) Act and
various Government Orders and Notifications;
principles of international law, e.g., everyones right to life as laid down in
Art 3 of the Universal Declaration of Human Rights;
precedent, non-authoritative case law, Tribunal and other decisions.
3.3 Traditional versus empirical research in law

One point of departure for this study has been to analyse law in books. Equally
clear from the outset, however, has been the need to complement this with an understanding of law in action. Research on what the law says is often done according to the black letter, dogmatic, school of legal positivism. Opposed to this
stands another school, to focus on what the law does in its wider, social context.95
To examine the implications for, and effects on, citizens of a societys formal rules
and legal practice requires an empirical approach to the material. A broader perspective is also essential to make clear the disparities between the law as depicted in
positive law (in statutes, court decisions, commentaries and textbooks) on the one
hand, and everyday reality (how legal institutions and practitioners conduct themselves) on the other.96 By applying such an approach here, I have sought to relate
the relevant rules and practices to the legislating actors/the judicial decisionmakers, the implementing institutions, and the subjects affected.97
Legal material is normally collected via libraries and archives at law schools and
courts, via the internet and at specialised bookstores. The methods used by legal
empiricists depart from the traditional ones in that inspiration is drawn from sociology and anthropology. Interviews and observations are hence common. In addition, archival documentation other than the regular legal sources might be searched
for.
In short, the traditional legal method is equivalent to finding, investigating and
applying the relevant legal sources of law to an identified problem, according to
certain systematic and practical steps. The process legal positivism in action
employed for the present study can be summarised as follows:
95
Cf. Baldwin & Davis pp. 881ff., who link the origin of the empirical approach in legal research
to the emergence of the realist school of jurisprudence. They point out that empirical studies
have most of all influenced the sub-disciplines of criminal and family law, other public law, and
investigations into the notion of justice. Empirical researchers in law often have other than legal
backgrounds and hence contribute to the multi- or inter-disciplinarity of the field.
96
Ibid, p. 886.
97
Dworkin 1986, p. 13, defines the internal point of view when studying law as being that of
those who make the claims.
56
1. Identify the dispute or other question at stake and formulate the inquiry to
be solved, e.g.; do the citizens of Bangalore have a (legal) right to drinking
water?
2. Locate and find the relevant sources of law:
a. Begin with secondary sources regarding the situation in common law, and
the detailed handbooks etc. that cover the field. Location: libraries.
b. Continue by locating the relevant and valid primary sources. The modern
lawyer does this via electronic databases such as Pointlex, Manupatra, and
Westlaw, which contain all recent bare acts (full text statutes without
added interpretations) and precedents. Libraries and courts should keep
official printed editions (none of the libraries or courts I visited in Bangalore and New Delhi had all the resources and material needed).98
3. Read and update pre-existing knowledge on the issue in question. For instance, after finding that drinking water is subject to a specific definition it
is inferred that not all water counts as fit for drinking. And so on.
4. Interpret and analyse the sources, using various methods of interpretation.
E.g., how far is the word potable to be stretched?
5. Apply the valid rule/s to the dispute or (research) question.
This is what learning how to research and practice law is essentially about: acquiring
the legal method and becoming familiar with the paths towards plausible argument.
However, if step 2 above seems easy on paper, this is seldom the case in reality. Initially, there will be practical setbacks such as the discovery that the databases
and/or libraries have but little in the very narrow field of ones specialisation, or the
books supposedly on their shelves have gone missing. One can also conclude, either at an early stage or after years of research, that what is available both in terms
of primary and secondary sources is neither rich nor accurate but rather misleading
because, for instance, situations or conditions have changed.
This and much more I experienced when carrying out this study. Thus for example when researching Indian law relating to groundwater, I found very few cases
and explicit statutory provisions that were applicable to contemporary requirements. If a court case was found, the next difficulty was to locate it. One discovery
was that even the National Law School of India University (NLSIU) in Bangalore,
the countrys most prestigious, has a relatively limited library clearly due to lack of
funding which negatively influences the possibilities of conducting thorough research there. However, I received plenty of help from the librarians as well as from
people at CEERA (the Centre for Environmental Law Education Research & Advocacy) at the NLSIU. As I visited the Supreme Court and the Indian Law Institute, both in New Delhi, on a couple of occasions, several cases and other material
were provided to me there. However, some of what I needed could be found only
98
The National Law School of India University, Bangalore, and the International Law Institute,
New Delhi, were my primary libraries. Precedents were also found at the Karnataka High Court
in Bangalore, as well as the Supreme Court, New Delhi. I also spent one month at the Institute of
Advanced Legal Studies in London.
57
in London: at the School of African and Oriental Studies (SOAS) and at the Institute of Advanced Legal Studies. Finally, I could not have succeeded without three
well-functioning websites: the Swiss-Indian International Environmental Law Research Centre (IELRC);99 American E-Law;100 and an Australian server with Supreme Court decisions from the Commonwealth area.101 From these, I could
download judgment reports in full-text as well as bare acts.
The fifth step in the simplified methodological instruction above is the key to
filling the gaps. The basic features of this methodological step will be treated in the
next subsection.
Lastly here, a few words are warranted regarding my attempt to collect empirical
material on the discourse on de facto water rights. In my understanding this discourse predominantly relates to water for irrigation purposes. Advocates emphasise
the importance of acknowledging local practice as rights, parallelly with de jure water rights and often as a result of negotiations. The discourse is pursued among
many legal anthropologists and -sociologists and is therefore discussed along with
social norms and local custom in Chapter VII. Although the discourse may be of
little practical significance to the Bangalore situation, it was seen as relevant for the
general discussion of water and rights. I enquired after relevant customary practices
as well as such valid as customary law. However, it fell outside the ambit of this
study to conduct any dedicated field research on the matter. Eventually, all I found
was a story about a tank in a village: when the water in it had been drained to the
point that a particular rock became visible over its surface, the remaining water was
reserved for drinking purposes only. This local custom had been always followed
by the farmers, the story goes, but nowadays the drought has changed everything.
3.4 Interpretation the essence of legal research?

Law whether dealt with theoretically or practically necessitates interpretation.
This component has been central to legal thought for a thousand years and it can
thus be contended that law needs a specific form of hermeneutical approach. Few
provisions of statutory law are clear enough to be applied upon the first reading
they have to be subjected to a thorough analysis in several regards and neither are
the ratio decidendi, the binding grounds and reasons for a judges decision in relation
to the facts of a particular case. The ratio is equal to that which is held in a judgment, also called the holding.
There are methods developed both for the initial examinations of relevant prerequisites and for the interpretation of whether specific words and terms are applicable. Each legal system tends to have its own standards, and there are distinctions
between the civil and the common law systems. To the extent the latter includes
statutory law, the major approaches to their interpretation have developed via court
99
http://www.ielrc.org.
http://www.elaw.org/.
101
http://www.commonlii.org/in/cases/INSC/.
100
58
decisions. Regarding civil law, the norms for interpreting statutes as well as case law
are found in doctrinal works and in text- and handbooks.
As a point of departure, wordings and grammatical construction should be interpreted in a strict and objective way; the Literal Rule. If one chooses to go beyond literalism, there is a need for extrinsic aids to interpretation consisting of
everything that is not found in the statute (or precedent). A subjective interpretation puts more emphasis on the legislators intent and the contextual background to
the enactment of a statute or decision in a case; the Liberal Rule. In the Purposive
Approach, or teleological method of interpretation, importance is attached to the
function and objective of a rule. The actual wordings of a section or article can be
interpreted in an extensive or a restrictive manner, and analogies can be made with
another section or court decision, applying its rule in the case at hand. Further, arguments can be derived e contrario; from the contrary position of what is regulated.
The common law system contains strict norms for the interpretation of precedents, the decisions which establish judicial rules and principles. The doctrine of
precedent, called stare decisis (stand by decisions), is fundamental to the commonlaw system. Accordingly, precedents are to be upheld and once a decision on a certain set of facts has been made, lower courts are not to depart from it in similar
cases which subsequently come before it. In later litigations it must thus be determined whether identical or similar facts and issues are involved.
India has eighteen High Courts under the Supreme Court, the apex of the hierarchy.102 The main principle is that every decision of a superior court binds inferior
ones. The law declared by the Supreme Court is absolutely authoritative and hence
binds all courts in India (Constitution, Art 141). A Single Bench (lone judge) of a
High Court must further follow a Division Bench decision of the same court (e.g.,
the Karnataka High Court); and a Division Bench must follow a Full Bench. A Single Bench decision is, on the contrary, not binding on a Division or Full Bench of
the same court; this precedent is only conditionally authoritative.103 Decisions of one
High Court do not bind other High Courts but are entitled to respect if the reasoning behind them is sound and cogent; therefore they are persuasive precedents. To this
category belong the rulings of English, American and other courts.104
A previous case is binding only as to its ratio decidendi. The judgment may also
contain obiter dicta, extraneous judicial opinions and observations that are merely informative or explanatory, on points which did not necessarily arise in the case. Obiter dicta do not therefore establish binding law but may be followed if sufficiently
persuasive. However, it is not always uncomplicated to determine whether a specific statement is a ratio or simply a side opinion.
The above can be summarised so, the stare decisis applies to the holding (ratio) of
a case, rather than to obiter dicta. Whether or not courts are bound by precedents,
102
There are also District Courts and Courts of Small Causes.

Such a precedent is liable to be disregarded in certain circumstances. For instance, a Division
Bench cannot dissent from another Division Bench decision, but can overrule it.
104
A.R. Biswas.
103
59
judges in all legal systems are aware that the need for reasonable certainty and predictability requires that like cases be treated alike. The doctrine of precedents contributes to predictability: there is a legal solution applying and to be expected in a
given situation henceforth.
One thing that characterises legal research is that the work material, the information and data available is rather full of holes. The lacunae appear gradually as
the legal landscape unfolds before the lawyer. The perpetual search for solutions
to actual disputes as well as for the truth behind hypothetical and purely academic
problems will further be much the same regardless of which sub-discipline or legal
system one deals with: no society has ever been able to deliver a set of rules that
covers every aspect of human behaviour and few would even want to. Also after
revision of a particular act or a major reformation of a whole area of substantive
law, there will be questions left unanswered because the legislator was not able to
foresee all situations or might have wanted to leave certain room for flexibility. The
same applies even after a precedent has been decided, because judges can only
make binding rules in relation to what is at hand in cases brought before the court,
on the facts set before them.
Hence, unregulated issues and less clearly regulated fields will continue to exist,
and when there is scope for interpretation there is also a need for systematic troubleshooting. Apart from the authoritative sources, legal reasoning can be based
upon other and freer arguments, including aim and intent, and weighing of the
means to the end. Ultimately, a judge may need to arrive at a decision based on her
or his own discretion, which is in turn founded on experience, general awareness of
societys and the legal systems inherent values, and intuition. Indeed, legal reasoning is about argumentation, but it is not a process in which the analyses of some
premises can be seen as valid by all parties.105 Law and legal methods contain an
important element of valuation and assessment of facts and propositions. The scientific aspect lies in the methodical, systematic, and transparent application of law,
and in the dynamic development that law can undergo in order to be attuned to societal needs for change. We will return to this foremost in Chapter IV.
4 (Self-) reflections and epistemological thoughts

4.1 Point of departure: my situated knowledge
When conducting contemporary qualitative research, epistemic (self) reflexivity is
increasingly stressed. Pierre Bourdieu is one of its proponents, and a target of his reflexivity is the social and intellectual unconscious that is embedded in analytic tools
and operations. Reflexivity resembles hermeneutic methodology in the sense that
this method implies that there can be no such thing as an objective interpretation.
It is therefore crucial that I as a researcher become aware of my prejudices, and my
expressed and tacit pre-understandings of various phenomena. I should also be
105
On the notion of validity as understood in positive and natural law, cf. Chapter IV below.
60
(made) conscious of the conditions that have shaped and continuously affect my
individual and unique interpretations. In my case it would mean becoming aware of
and making visible my own biases, position, and location within academia including
all its different disciplines; towards the various objects of knowledge taken into account; in relation to the research choices made; and not the least in this very text.
The sum of this makes up my situated knowledge. I agreed to take all of this into
consideration in my work when I set out to deal with water and rights in the Indian
setting.
The two things that have situated me most are my Swedish background in law
and my interest in environmental questions that became active at the end of my law
studies. As an undergraduate I learned the domestic legal system as well as European Community law and though the differences between the two prompted reflections, it has proved difficult to fully grasp the mixed legal system that states such as
India practise. The general approach to the concept of law in Sweden a civil-law
country where rather dogmatic legal positivism predominates is, quite naturally,
very different. One reason is that Sweden, a country with only nine million inhabitants, can apply a unitary system; whereas in India, aspects such as religious laws,
tribal practices and, not least, colonial remains and relics make the picture more
complex. Other pre-understandings that I carried with me often made me assume,
for instance, that certain maxims and legal principles could also be applied in common-law reasoning.
The environmental lawyers work often makes it necessary to go against the
stream, that is against dogmatic, positivist interpretations of law. It also necessitates
insights into the limits of natural science, such as the fact that there are certain established axioms for instance, chemical reactions as well as insecurities and unpredictable, non-linear effects, as studies on climate change show. Environmental
law can contribute by mandating the use of various tools in planning and decisionmaking. One of the more important tools is that due precautionary measures are to
be taken at an early point a principle that takes into account the features of insecurity and unpredictability in scientific as well as societal processes.
4.2 Standpoint epistemology

Both in todays presumably universal academic society and in popular contexts, implicit presumptions as well as express criteria act to condition what is to be considered and valued as real and good science. This constitutes the predominant norms
and standards for how to understand and explain successfully the world we live in.
The norms are set out so that findings may be considered legitimate and thereby win
the greatest possible acceptance. Certain standards and more or less well defined
methods are, accordingly, preferred when gathering data and observing phenomena. This is in order to systematically transform such data into exact results, and to
digest and analyse it all to reach accurate true conclusions. These criteria and
underlying assumptions have also been the cause of some hierarchy between the
hard natural sciences, based mostly on quantifiable data, mathematical methods
61
etc., and the soft social sciences. The level of preciseness and accountability is presumed to be lower in the latter, with its plethora of qualitative methods. The social
sciences have thus always had to justify their legitimacy, and their proponents have
held that studies to understand human behaviour and linked phenomena cannot
and should not be rationalised in the same way as studies concerning physical objects and the laws of nature.106
Sandra Harding has inspired me to rethink the phenomenon that we call science.
Harding firmly believes in looking at science and its criteria as being social, political and cultural phenomena just like any other, in order to explore how sciences
and societies co-construct each other over time and space.107 She has in her work
shown how modern epistemology questions are internal features for the generation
of knowledge, i.e. standards for maximising objectivity and rationality. Harding
thus rejects this conventional and still prevailing theory of scientific knowledge, this
internalist epistemology. She traces the genealogy of this label to five centuries ago
and an autonomous European continent on which it was thought that its own, internal, qualities were sufficient for modernisation; that there was no need for interaction with the outside world or influences taken in from other cultures, or with
other values of interest.108 Since the beginnings of colonialism in 1492, these Eurocentric scientific ideals have taken shape, to be exported eventually and implemented elsewhere as part of imperialistic hegemony.109
By employing a criticism based on post-Kuhnian, postcolonial, and feminist
ideas, Harding asserts that we ought to revise the conventional ways of thinking
about knowledge traditions of other cultures. If nothing else, this is fundamental as
part of how to deal with the history, limitations and future of modern Western
science. Her thinking is in line with the postcolonial theoretical approach that focuses on the notion that, e.g., cultures are interlinked with each other and with science and knowledge, and that there cannot and should not be one true way of representing nature, nor one universally valid scientific tradition.
Harding contrasts the European sciences with earlier European and nonEuropean cultures magic, witchcraft, pre-logical thought, superstition or pseudosciences; with folk explanations or other ethnosciences that are embedded in religious, anthropomorphic, and other only local belief systems. To embrace what
are often regarded as only traditional beliefs and practices of other cultures as well,
Harding thus proposes a conceptual shift. She uses a more inclusive definition of
science as referring to any systematic attempt to produce knowledge about the
world.110
106
Cf. Guba & Lincoln; Widerberg.

Harding 1998.
108
Ibid, pp. 5, 23f.
109
The so-called scientific revolution is generally dated to Western Europe during the 16th century. A forerunner was, of course Plato and his analysis of knowledge.
110
Harding 1998, pp. 9f.
107
62
Harding has for long also been an advocate of posing research questions that
are for women, and arise from their lives standpoint epistemology. This is not the
least important, she holds, in societies where scientific rationality and objectivity are
claimed to be highly valued by dominant groups, simply because
from the perspectives of marginalised lives, the dominant accounts are less than
maximally objective. Knowledge claims are always socially situated, and the failure by
dominant groups, critically and systematically, to interrogate their advantaged social situation and the effect of such advantages on their beliefs, leaves their social
situation a scientifically and epistemologically disadvantaged one for generating
knowledge (emphasis added).111
Anyone who conducts research should strive to regard that issues of the powerless, of those at the bottom of the hierarchies, provide research questions. For the
experience and lives of the marginalised as they understand them to be visible,
Harding holds, these question need to be asked.112 For the researcher, this means
that the multiple, heterogeneous, and frequently contradictory nature of peoples
standpoints must be acknowledged, and a strong, i.e. high, level of self-reflexivity is
required.113
The work on this dissertation has shown how influenced, not to say indoctrinated, I am by the claims for rationality, critical thinking, etc. that prevail in the traditions of my disciplinary background. This has been most remarkable in the way I
value information from different informants and authorities, in comparison to the
(written) legal material collected and analysed according to the mode described.
The time spent in India itself influenced me to question the legitimacy and prudence of some theories and policies that were based on (natural) science. Further,
the field visits gave many examples of how legal provisions were neither implemented nor enforced in real life; and of how the awareness of relevant, valid law
was often low even among lawyers. My scepticism about the role of law thrived
along with other peoples negative attitude towards it. Nonetheless, I still believe
that neither law nor the notion of rights can be seen as phenomena that exist but
lack meaning in society. Just as qualitative research is conducted in order to improve our understanding of human conduct, of our belief systems, and of the reasons behind actions such as decision-making, inter-disciplinary research on law and
rights can help us conceive its many important functions in the area of water management, and ultimately improve these.
111
Harding 1993, p. 54. The term situated knowledge is originally from Donna Haraway.
Ibid.
113
Ibid, pp. 64ff.
112
63
Latha
Latha is 21 years old and was born in Old Hale Bypanahalli, also known as the Railway Crossing Slum. When the trains pass, day and night at high speed, their sound overcomes all efforts to talk. The people living in the slums 405 households originate from
Salem in the State of Tamil Nadu, and many are Christian converts. Most people who
work are day-wagers earning between Rs.80-100 a day. Latha gives tuition classes to 12
children from the area for an hour each evening. She teaches English, Kannada and
Tamil, and earns Rs.30 per day from this. She is not married, though many girls here
marry as young as at fourteen.
We have no drinking water supply here, no latrines, no drains. I go outside the area
with the other girls and women every morning and night twice a day to do my needs.
We cannot go during daytime as there will be men harassing us. Water that is needed for
drinking we fetch by walking a kilometre to the railway quarters. We can also buy it
from a building that is nearer: Rs.1 for 3 pots. Usually two pots a day per person are
enough for cooking and drinking.
Water for washing is available at a common standpost in the habitation, but only for
some hours in the morning and only every second day. It comes from a bore well and is
salty. Latha tells us that the pump of the standpost recently needed to be repaired again
and that the cost was spread among the households, which were to pay Rs.30-40 each.
An elder, who functions as the leader of the area, collects the money and he keeps track of
who has paid and who needed a respite until the money can be raised some time in the future. Lathas family was among the latter. The household consists only of her and her father after her sisters got married and moved in with their husbands and in-laws. No-one
knows where the mother is.
The houses in Hale Bypanahalli are huts made either of mud or old bricks, and most
have roofs of palm leaves. The slum was built some thirty years ago when the first group of
migrants moved in, but as it lies on railway company land the inhabitants have been told
that they are soon to be shifted. As far as Latha and her neighbours know, only some
hundred houses have as yet been built in the new area, Ganjur Village. More will be put
up, they have been assured by the elder who is working with the Congress Party. Ganjur
is said to be situated in a forest, but no one has described the water facilities. What Latha
and her neighbours also do not know is that the Forest Department has already said no
to the suggested location. In addition, the Gram Panchayat of Ganjur holds that there is
no room for some 400 families in the village, considering how it is surrounded by the protected Green Belt area. From the looks of it, this is quite true.
Few people in Hale Bypanahalli seem to worry, though. On the day of our first visit,
many had gathered to get their voting cards registered by a woman from the Election
Commission.
The SaiBaba Ashram people used to send tankers with drinking water to us, but
not the last month or so as we are to move location. Anyhow, we are not employed somewhere, and we can do coolie work in the new place also.
64
Chapter III
Water and the City
1 Introduction
The inhabitants of Bangalore live in an urban agglomeration that is expanding by
leaps and bounds, and where the problems of access to and supply of water are aggravated in step with the increasing urbanisation. Population growth was over 6
percent for the period 2001-2006, with an ensuing construction boom. Though the
water demand in Bangalore represents predominantly domestic needs, an increasing
number of city dwellers result in new and different demands with severe pressure
on the natural resources.
Bangalores water resources are of several kinds. They consist of the tanks that
were once connected into a life-sustaining network, the low-yield underground aquifers and the river which is subject to an ever-escalating conflict. Most of the decision-making regarding these resources takes place at city level; Bangalore is thus in
charge of the management and has the power to improve issues of access. However, some allocation decisions are made by the State Government and at the level
of the Centre. These and other actors function as various exogenous factors.
To estimate and discuss the importance of the water resources and the changes
that can be expected, this chapter begins with a description of the factors exogenous to the growing, transforming city. The focus lies on the water and other natural conditions of Bangalore and its immediate surroundings.
Against the background of how poverty is defined in India and affects peoples
purchasing power, we then return to the issue of peri-urbanisation. Bangalore has
65
been undergoing a remarkable process of transformation, not least since the ITboom made it into a counterpart of Silicon Valley. The latest step is the administrative decision to extend the jurisdictional boundary to include the eight municipalities and 110 villages.
2 Geographical data
2.1 Introduction
The rainfall over India three quarters of which fall during the three to four
months of monsoon season is not evenly distributed, in time or geographically.
Floods and droughts often occur in the same region in the same year. Precipitation
is normally confined to about three-four months each year during the monsoon
season, and varies between different places from 100 mm to over 10,000 mm
yearly. In summer and especially when the monsoon has failed, the surface water
flow is reduced to a minimum even in the perennial rivers.
As a result of an increased, general demand and a declining availability of surface water together with its deteriorating quality, the demand for groundwater has
increased manifold during the past few decades. This is not only for drinking; the
major consumptive use of water in India today is irrigation for food and fibre production. Where the Green Revolution has influenced agricultural practices,
groundwater accounts for up to 75 percent of the irrigated area in some regions of
in India and it is hence of great economic importance. Further, industrial needs for
freshwater e.g., for textiles, construction, and the manufacture of bottled drinking
water are increasingly met by extraction from tubewells that are being drilled
deeper and deeper.
The large variations in precipitation also affect the groundwater table and the
recharge potential, due to runoff circumstances. The Central Water Commission
has estimated the usable groundwater resources to 690 km3 (48 million hectare metres), of which 432 km3 can be extracted annually. The freshwater potential in total
is about 1,869 km3.114 However, along with climate change and geological and topographical limitations, water-related conditions are altogether becoming more unpredictable.
2.2 Topography
The State of Karnataka is situated in peninsular India, a triangular plateau also
known as the Deccan. It has been land for at least 65 million years. Of two mountain ranges in this area, the Western and Eastern Ghats, the Western constitutes the
major part of the Plateau, and the Deccan proper part is composed of horizontal
layers of lava flows. The Eastern Ghats range is an irregular and discontinuous
114
Data from the Ministry of Water Resources National Water Policy 2002, para 1.2; web pages
of the Central Water Commission Water Info; Central Ground Water Board web pages Knowledge base, State profile: Groundwater scenario: Karnataka.
66
chain of elevations. The Ghats unite by the Nilgiri Hills. Some 60 km to the northwest of Bangalore are the Nandi Hills (Nandidurg), 1,478 m above mean sea level.
The rivers Pennar, Ponnayiar, Palar and Arkavati originate here.
Large parts of the city of Bangalore are
Map 3. The Deccan Plateau.
characterised by undulating terrain. The main
valleys run north-south and the city is divided
into distinct drainage zones. The average elevation is 920 m above mean sea level and the
highest point, 962 m, is situated on a ridge
with a NNE-SSW direction.
The ridge functions as the boundary between two watersheds for the two perennial
rivers, the Kaveri and Pennar. The ridge divides Bangalore so that the western third of
the city drains into the Kaveri via a tributary,
the Arkavathi River. This circumstance is of
great importance, and we will return to it below.
Adapted from Wikipedia.115 Not to scale.
2.3 Climate
Indias climate can roughly be divided into wet during monsoon, and dry during the
rest of the year. The southern part of the country is drier than the rest, and the
Bangalore region is classified as having a dry, tropical, savannah climate with four
seasons:
winter, characterised by bright and dry weather from December to February
summer, characterised by high temperatures from March to May;
South-West monsoon from June to September; and
North-East monsoon/retrieving monsoon period from October to November.
Bangalore is in a semi-arid, drought-prone region with moisture indices of less than
50 percent.116 The tall Western Ghats blocks the southwest monsoon and puts the
Deccan Plateau in a rain shadow. Hence, nearly three-quarters of the State of Karnataka is drought-prone, annual rainfall varying from 300 to 750 mm. Bangalore
normally receives negligible quantities of rainfall during summer and winter, though
thunderstorms can occasionally give considerable amounts. The city receives an average of 830-970 mm of rain per year.117
115
Wikipedia web page Deccan.

Ramachandra & Kamakshi, p. 38.
117
The sources differ greatly. The higher figure is from the Rainwater Club.
116
67
Bangalores mean monthly relative humidity ranges from 44 percent in March to

80-85 percent in June to October. High wind speed averages 17 km/h during the
westerly winds in July and a minimum of 8-9 km/h during April and October. The
two monsoon seasons come with opposite wind regimes; southwest and northeast.118
The temperature is lowest in early January (down to +13C). The hottest month
is May when temperatures can rise to +38C. Both global and local warming affect and are projected to influence increasingly the temperatures of the area.119
Climate change will also probably affect the annual average precipitation, actual
evapotranspiration and water yield for the region, leading to severe drought conditions.120 Heavy intermittent showers are likely to become more frequent.
The forests of Bangalore are essentially of the dry deciduous and scrub types.
The city has several parks, the largest being Lalbagh and Cubbon Park (about 2
km). Bangalore has no natural wetlands but since the sixteenth century, when the
city was founded, numerous tanks, ponds, dams, lakes and a connecting network of
streams have been created for drinking water and horticulture. The many bodies of
water functioned as reservoirs in the undulating landscapes many valleys and lowlying areas. The engineering was especially pronounced during the time when the
British made Bangalore a military cantonment.
As there is no assured rainfall, dry-land agriculture is practised in a major portion of the State. The soil prevalent in the Bangalore region favours ragi, groundnut,
mulberry, grape vine, eucalyptus and more.
3 Tanks, lakes and water supply

3.1 Water supply: the beginning
It is commonplace to find human dwellings in close proximity to water sources
by coasts and river banks. Transport over water has always been cheaper and more
efficient than over land. However, Bangalore lies in the middle of southern India,
far from a river. The city has therefore no history as a centre of commerce or trade.
Nevertheless, it has existed as a settlement for well over a thousand years. The warrior chieftain Kempe Gowda ruled over the vast agricultural tracts and laid the foundation of Bangalore in 1537. He built his mud fort in a valley portion and the merchants and artisans that came after soon made the settlement renowned as the most
118
ENVIS.
According to J. Srinivasan, IISc (e-mail communication May 9, 2007) the daily maximum temperature may go up to +40C by 2060. The number of days with minimum temperature below
+13C has decreased, while the number of days with maximum temperatures above +33C has
increased. Local warming occurs due to more glass-covered, tall buildings as well as concrete
grounds, and fewer tanks and green areas all of which are the results of poor architecture and
planning of city space.
120
Cf. Gosain, Rao & Basurays study of the Krishna River basin, which is situated north-east of
the Kaveri River.
119
68
important marketplace in the then Kingdom of Mysore.121 In 1806, the English

colonisers decided to establish their largest cantonment in Bangalore.
The citys undulating terrain caused water to assemble in tanks and lakes, and
these assumed major significance over several centuries as sources of water for
drinking, irrigation and other needs. Numerous tanks, canals and sluices were also
constructed, the first already in pre-British times. Apart from its function as a
drinking water supply, this man-made network of water bodies came to support
mixed farming and gardening as well as low scrub forest, favourable for hunting
and gathering. An intricate system linked the tanks within the same sub-catchment
area and allowed for surplus water to flow over to the next tank in the chain. Very
little went to waste; the principles of storage and rainwater harvesting were already
well developed, and the facilities carefully maintained.122
Maps reveal that very many of these tanks were situated within the city itself. 123
They played a pertinent role in the early beginnings of Bangalores development,
and remain important. The many estimates of how many lakes and tanks Bangalore
once had range down from well over two hundred to over 120. It is equally difficult
to get a unified picture of how many remain in various conditions. According to
the Lake Development Authority, 46 are classified as defunct sometimes even
untraceable and beyond revival and rejuvenation. Some are used as garbage
dumps or have been reduced to cesspools, others are being shrunk little by little by
the wild water hyacinth. Most, however, have been encroached upon and no longer
exist in their prior form. They have been replaced by, e.g., the city bus terminus,
sports stadiums, commercial buildings, residential layouts for the high strata, and
slum areas. Pressure on land is high in a city such as Bangalore, the authorities explain.124 Unlawful granting of building permits is another cause.
Rejuvenation and restoration of tanks and lakes that have silted up or been encroached upon is a much discussed topic, but it is yet to result in any coherent policy and eventually action, foremost in the form of desilting, deweeding, etc. The
proposed work of the Lake Development Authority, set up in 2002, was called the
first serious attempt in over 50 years to make the traditional system function again.
The Authority endeavoured to raise awareness regarding the importance of tanks
and lakes.125 However, no public resources to maintain the lakes seem to have been
forthcoming. The Authority therefore proposed that lakes can be maintained
through public-private participation. The initiative to lease them out to e.g. NGOs,
hotels, corporations or residents associations on a Develop/Operate/Transfer basis never succeeded, though. One lake situated in a gated community, the luxurious
Palm Meadows, was adopted by residents. A handful of others have been taken on
121
Vagale, p. 34; Nair 2005, pp. 27f.

Agarwal & Narain, p. 206.
123
Cf. ibid; Suresh Babu, p. 39.
124
Agarwal & Narain, pp. 206f.; Chandramouli.
125
Department of Environment and Ecology, web page Lake Development Authority.
122
69
by private companies.126 Since 2006, the Authority seems to have closed down,
though.
Meanwhile, NGOs and citizens groups fight in their own ways for the survival
of the tanks, via awareness-raising activities, media events and litigation. Bodies recently active include the Karnataka State Legal Services Authority, which functions
under the Karnataka High Court; and the Legislative Council.
3.2 After the tanks: reservoirs

The tanks proved insufficient as demand grew, and sources were sought at steadily
larger distances. In the 1860s, storm water drains were laid out to carry water to
outlying tanks, and a sewerage system was put in place. An initial attempt to provide safe water to parts of Bangalore was made in 1873 with the construction of a
new tank in the Cantonment. Apart from this, unfiltered water was supplied from a
number of tanks including the kalyanis (temple tanks), supplemented by dug wells.
Despite the large Sankey Tank coming up in 1882 and being linked to other, existing tanks, there was not enough capacity to cater for the growing population and
the citys other needs for water.127 A famine (1875-1877) resulting in an influx of
people from outlying areas added to the problem.
Public contests were held to design augmented supply schemes. Reportedly,
there was scarcely a site or a tank for miles around Bangalore that had not formed
part of one or another project.128 The solution came in the first half of the 1890s,
with the first protected water supply scheme. The source was the Hessarghatta
Lake on the Arkavathi River. Water hence began to be pumped to Bangalore from
an area situated some 65 km north-west of the city. The reservoir was designed to
provide up to 250,000 people with 57 lpcd, and it was anticipated that the infrastructure would be sufficient to meet the citys needs for three decades. However,
already in 1922 the population had reached the ceiling and the inadequacy begun to
be felt. The situation was perceived as acute by 1925-1926, when the reservoir went
almost dry following two successive years with bad monsoons. Efforts were made
to restore the water supply to the city by making use of various tanks. Yet another
reservoir was commissioned on the Arkavathi by building a dam at T.G. Halli,
downstream of Hessarghatta Lake.129 This new scheme was inaugurated in 1936 and
temporarily eased the problems of access and supply.
The reservoirs were administered and maintained by the Public Works Department (PWD), an institution established by the British in the mid-1800s.130 After
some years, Hesarghatta was handed over to the cantonment municipality, as it was
126
Shivanand 2006.
Ibid.
128
Rice in Nair 2005, p. 31.
129
Agarwal & Narain, p. 206; the Water Board web page Supply and Source.
130
The term public works here refers to maintenance functions and agencies as well as the structures as such.
127
70
felt that management was unsatisfactory in the hands of the PWD.131 Water supply
remained a task for the municipality until the 1960s, i.e. throughout Independence
and the restructuring of the Mysore Kingdom to form the State of Karnataka, with
Bangalore as State capital.
It can be assumed that the Arkavathi River and its immediate drainage area
played a most significant role as the hinterland supporting the needs for freshwater
in Bangalore. Urban development must have benefited greatly from the improved
access that the Arkavathi provided. It contributed to Bangalores ability to continue
growing rapidly, its population almost doubling. But it soon became clear that the
reservoirs would not suffice for long. In retrospect we can see how the authorities
were replaced one after another, each bringing new ways of viewing the responsibility for water supply.
3.3 Modern times: the Cauvery Water Supply Schemes

To meet future needs through new sources of water supply, an Expert Committee
was constituted in 1958 to examine potential sources. Among the four options
were further development of the Arkavathi River downstream of the main reservoir, tapping either of two other tributaries to the Kaveri River, and distribution of
water from the Kaveri itself. The Committee recommended the latter. The reasons
are not known: presumably calculations indicated that a greater amount of water
was to be found in the Kaveri.
During the first half of the 1960s, the Bangalore Water Board was set up. Construction of the initial stage of the Cauvery Water Supply Scheme began in 1969
and the supply of Kaveri water to Bangalore commenced five years later, with a capacity of 135 million litres daily (MLD). As the demand continued to increase,
work to supplement this first stage was carried out. A third stage was completed in
1993, contributing to provide a total of 540 MLD of water to Bangalore. 132
For the fourth extension, work was divided into two phases. The first was
commissioned in September 2002. The second was planned to start in 2005 but
faced several years of delay before even leaving the drawing-board. It will reportedly augment the supply with another 510 MLD by about 2011. This last stage is
planned chiefly to cover the outer areas of Bangalore: water is to be piped up to the
northern part of the city (Yelahanka), under a project to which we will return in
Chapter VIII.
In 2007, some 810-860 MLD of water was pumped from the Kaveri, which
equals 10.4-11 thousand million cubic feet (TMC)/year, or some 295-314 million
cubic metres (Mm3)/year.133 During 2005-2006, 923 MLD of water was supplied to
Bangalore, the balance taken from T.G. Halli and the Boards bore wells. Per person, this has been held to give the Bangaloreans approximately 100-110 lpcd on average, though probably less. The raw water is conveyed through a channel via two
131
Agarwal & Narain, p. 206. The PWD is nowadays responsible only for roads and highways.
The Water Board web page Cauvery Water Supply Schemes.
133
BWSSB 2006, p. 1.
132
71
reservoirs and a 10 km gravity main.134 After purification in different treatment

plants, the water is pumped to smaller reservoirs in the city, and from there it is
supplied to individual households and establishments by gravity and pumping
through a network of smaller pipes. Individual, connected premises are required to
install an underground sump as a storage receptacle, as well as electric pumps with
which to raise the water to another receptacle situated on the roof of the top storey. As water is delivered only for some 2-5 hours every second or third day,135 each
household relies on these private contrivances to store water, and on gravity to
transport water from the uppermost point of the building, since power supply is
quite erratic.
The whole Arkavathi region has lately been suffering from drought, with the result that its reservoirs receive less and less water each year and have not been filled
since 2002. The T.G. Halli and Hessarghatta reservoirs are now seen as unreliable
sources by the Water Board, giving only some 30 MLD since 2007, and almost
nothing on summer days.136
A consequence is that the Arkavathi tributary no longer feeds the Kaveri. The
problem is partly due to failing monsoon rains, and partly that the catchment area
has been encroached upon, meaning that the surface soil has been hardened and
replaced by houses, roads, parking-lots, etc. Rainwater harvesting structures that recharge the groundwater have also been installed at many buildings, further diminishing the run-off which could eventually drain into the river.137
The Water Board is now offering recycled water from its treatment plants at a
much lower cost than its potable water. The available water is presently meant for
gardening purposes and the like where quality standards do not have to be met for
health reasons but from 2008, new treatment plants offering potable water are being built. To treat wastewater and re-use it is regarded an unconventional method,
yet necessary when the demand for water from the Board is already much greater
than the availability. Wastewater will be treated through an ultra filtration process
which uses cellulose membrane technology and is thereafter taken via a separate
pipeline and made to blend with the water in Hessarghatta reservoir. This water will
then be taken through the regular filtration process before it is pumped into the
distribution system.138 Commentators hold it will be a challenge to sell this solution,
not to mention the water, to the public.
As Bangalore city is located some 500 m higher than the Kaveri, pumping takes
place at three levels. Electricity costs (the power tariff paid to the Bangalore Electricity Supply Company, BESCOM) form the main item of expenditure for the Water Board, amounting to some 65 percent of its budget. It has been calculated that
134
The carrying capacity of the channel has been increased by, e.g., desludging and deweeding.
The Water Board 2006, p. 12.
136
Personal communication with Water Board engineer. January 8, 2007.
137
Ibid.
138
R. Sharma 2007.
135
72
it costs Rs.18, but maybe as much as Rs.40, to produce a kilolitre of water.139
3.4 Summing up
We have seen that the surface-water resources available within a distance of 100 km
have been developed and exploited over the past centuries in order to provide the
city with freshwater. Tanks historically of fundamental importance to Bangalore
have disappeared and focus turned to supplying water from Rivers Arkavathi and
Kaveri. The former is now drying up and efforts to transport more water from
Kaveri are intensifying, at steadily higher costs as the city is situated between 900 to
960 m above mean sea level. A question that arises is how planning for the future is
carried out. There are certain legal aspects relating to the water of the Kaveri, as indicated. Before treating these, though, we will investigate the groundwater resources of the Bangalore region.
4 The underground reservoirs

4.1 From dug wells to bores
Where the choice for providing the city of Bangalore with water has gradually
turned from the tanks and lakes to the rivers, much of the solution on an individual
basis has been groundwater. On average, about half of Indias urban population depends primarily on groundwater for drinking and other domestic purposes.140 In rural
areas the equivalent proportion is 85-90 percent or more. In total, 80-85 percent of
the water for drinking comes from groundwater.141
As a result of the technical possibilities developed some 25-30 years back, which
made drilling for water feasible on a larger scale, groundwater became increasingly
reachable as a source of supply. Deep tubewells have more and more replaced the
open, dug wells, and the dug-cum-bore wells. An electric and diesel-driven irrigation pumpset comes at an relatively affordable price, as does electricity: often heavily subsidised by the State Government in exchange for votes.142 Farmers also regularly take loans from banks or private lenders for drilling wells, and many of these
entrepreneurs become heavily indebted.
In combination, these factors mean that a rapidly growing number of users are
able to pump water that is available just in time throughout the year, (seen as)
comparatively fresh and pure and under individual control. The lack of a strong
and consistently implemented regulatory structure on groundwater abstraction is
another aspect that contributes to making groundwater attractive. Navroz K. Dubash
139
Vishwanath 2006; Suresh Babu, p. 38.

The Centre for Symbiosis of Technology, Environment and Management, on the Rainwater
harvesting web page Urban water scenario, has estimated that 40 percent of the population of
Bangalore is dependent on groundwater.
141
Ministry of Water Resources 2006.
142
Surendra, personal communication January 6, 2006, points to the nexus between water and
electricity.
140
73
points out how factors like these, together with different hydrogeological features,
are conditions which determine access to groundwater. Where all these factors are
present, the result is inevitably rapid water drawdown.143
Approximately 20 million private wells have been drilled across India.144 Data is
still scarce and varying, but the assumption for South Asia as a whole is that the
groundwater development has not yet peaked.145 Large aquifers on the Indian subcontinent are still considered untapped, normally expressed in terms of the stage of
groundwater development146 being below 70 percent.147
Nevertheless, the intense drilling and deepening of the wells has not eliminated
the competition between different sectors of water users. Rather, the ever-growing
demand has driven the groundwater tables lower. Calculations show that withdrawals exceed the annual recharge to the aquifers in many areas of India. Lowered water tables have such consequences as sea-water intrusion, and the deepening of
wells has resulted in exposure to the fluoride, arsenic, salinity, etc., that occur naturally in the bedrock. The declining yields further increase the electricity and/or diesel pumping costs.
Pockets in large parts of the country, including both the Bangalore Urban and
Rural Districts, show groundwater levels falling more than 20 cm yearly. According
to the long-term water-level trends during the pre-monsoon, estimated by the Ministry of Water Resources, this means over two m for the period 1995-2004.148 Water
tables in the cities were falling at a rate of 7-10 feet (2-3 m) per year already at the
turn of the century.149 In total for the country, just over 70 percent of the area assessed in 2004 was declared as safe for further development, whereas 15 percent
was categorised as over-exploited. In Karnataka and Tamil Nadu, 37 percent falls
within the latter category.150
143
Dubash, pp. 156f.

It has been estimated that water for irrigation accounted for about 85 percent of the total
groundwater withdrawals in 2000. The areas irrigated from wells have increased from 6 to 34 million ha. during the past 50 years. The Ministry of Water Resources holds that in general, minor
irrigation projects have both surface- and groundwater as their sources of irrigation, whereas medium and large irrigation projects (with a Cultivable Command Area larger than 2,000 ha.) rely on
surface water that is mainly distributed via canals. However, Shah and many other researchers
hold that groundwater dominates the irrigation economy. Shah, Singh & Mukherji, p. 287 with
references; Shah 2007, p. 32 note 1.
145
Shah 2004a.
146
Radakrishna, p. 8, defines development of groundwater as to arrest natural discharge and
put it to purposeful use.
147
For instance, the large alluvial tract in the Sindhu Ganga-Brahmaputra plains constitutes one
of the largest and most potential groundwater reservoirs in the world.
148
Ministry of Water Resources, web page Name Of The Districts.
149
Shah et al., p. 2. Ahmedabad, Jodhpur and Chennai were practically pointed out in 2000.
150
In the States of Haryana, Rajasthan, Punjab and Delhi, 49-78 percent of the groundwater is
over-exploited. Swaminathan et al., p. 8; Central Ground Water Board web pages Knowledge
base, State profile: Groundwater scenario: Karnataka.
144
74
4.2 Geological conditions

The major part of the available freshwater resources on Earth is located underground, as an important part of the hydrological cycle. Of the total volumes of water found under the surface of the Earth, the major part can be referred to as
groundwater. This is the water that is exploitable from aquifer formations, which take
different shape and size and function as reservoirs. Strictly speaking, groundwater
as such should not be spoken of as subsurface or subsoil water. The soil moisture (green water) is situated close to the surface, between the zone of aeration
that forms the top layer, and the actual groundwater level. It is of great importance
for trees and plants, which extract soil water via their root systems. This layer is
therefore fundamental for food production. Yet, an areas topography, average
rainfall conditions and hydrogeological features are the factors that decide whether
it is feasible and economically reasonable to dig, drill or bore for groundwater.
Knowledge of the distribution and movement of water in soil and rock depends on
several interacting factors, including biological, physiological, chemical, meteorological and increasingly climatological such.
The natural and induced groundwater flow from soil to rock goes via a contact
zone, which varies depending on climatic conditions and local formation processes.
A very important factor to determine is how far water-saturated soil layers occur on
top of the bedrock, or if this bedrock is bare.151 It has been shown that groundwater
flow from soil to rock can only appear if permeable soil layers or permeable horizons in the soil are hydraulically connected to open or partly open structures in the
rock (Figure 1).152
Figure 1. Groundwater recharge in bedrock.
Without soil layers.
With residual deposits.
From Olofsson et al. 2001, p. 123.
151
152
Olofsson et al. 2001, pp. 123f.

Olofsson 1994; Olofsson et al. 2001, p. 124.
75
Fine-textured soils such as clay and loam, prevalent in the Bangalore area, can result in low infiltration capacities and hence low sub-surface recharge but high runoff. The infiltration capacity is generally increased with a vegetation cover, especially forests. Loamy and clayey soils retain water well, which can make them relatively impermeable. The conditions in Bangalore are, however, sandy, even gravelly
loam (Table 1).
Table 1. Soils in the Bangalore area.
Soil unit
Description
Red gravelly loam

soils
Red loam soils
Shallow, well-drained to excessively-drained, reddish-brown to yellowish

brown, gravely sandy loam to sandy clay loam.
Shallow, excessively-drained to well-drained, reddish-brown to yellowish
red, sandy clay loam to sandy loam soils, moderately to severely eroded.
Red gravelly clay soils Deep to moderately deep and shallow, well- to excessively drained, yellowish brown dark red to reddish-brown, gravely sandy loam to sandy clay
loam and loamy sand surface soils and gravely sandy clay to clay subsurface soils, moderately to severely eroded.
Laterite gravelly soils Deep, well-drained to excessively drained yellowish-red to dark reddishbrown, gravelly, sandy clay and clay surface soils, moderately- to severely
eroded with surface crusting.
Lateritic soils
Deep, well-drained to excessively-drained, yellowish-red to dark reddishbrown, sandy loam to sandy clay and clay surface soils and clay subsoils,
moderately to severely eroded with surface crusting. Exist in patches.
Adapted from Ramachandra & Kamakshi, pp. 35f.
From these data we can conclude that intrinsic permeability in the area should be
moderate-to-slow, where the fact that the soils are well-drained improves the recharge possibilities. The slow infiltration rate can result in a rather high run-off during intensive monsoon periods, when the soil is thoroughly wet and saturated. As
Bangalores green belt (Map 2) is rapidly decreasing with the demand for land to
convert into residential areas, and the surface is instead hardened, rainwater harvesting is all the more important.
The rock formations in the Bangalore area originate mainly from the Archaean
age, the oldest rocks of the Earths crust (>2,500 million years). Gneiss and granitic
gneisses dominate, being thoroughly crystalline, extremely contorted, unfossiliferous, contrasted and faulted. Granites occur as plutonic intrusions, with coarse
grained and porphyritic texture, and pegmatite veins. The gneisses are also often
traversed by east-west and north-south trending dikes of dolerite. The extreme
characteristics have given rise to the names Peninsular Gneissic Complex (PGC), or
sometimes Archaean complex.153 In addition, laterite a Pleistocene formation
exists in the high-altitude, north-eastern part of Bangalore.
153
Wadia, pp. 74f.; Radakrishna, p. 15.
76
Being of Archaean age, the Indian peninsula has long been exposed to winds,
humidity, dry conditions, etc. Though the crystalline rocks in the area lack primary
porosity, the gneisses and granites have undergone different degrees of secondary
decomposition that has resulted in layers of weathered, semi-weathered and kaolinitised zones, as well as massive rocks with fissures, fractures and joints.154
The highly weathered and porous rock formations extend to about 12 m, and at
most 20 m in valleys, and this zone is generally clayey in the case of gneisses. The
bedrocks fractured zone contains
joints and cracks, some of which
are well connected to each other
Figure 2. Rock profile.
and can function as conduits. At
Soil
deeper levels there may be master
Weathered
joints that have been enlarged by
zone: 1-20 m
dissolution and can extend to considerable depths.155 The fracture
Weathered
systems are generally hydraulibedrock: ca
cally connected with the over20-50 m.
lying weathered and saturated
residuum.156
Jointed &
fractured
zone, with
few interconnected
fissures
Adapted from Radakrishna.
4.3 Estimating groundwater resources

The Karnataka State Department of Mines and Geology and Central Groundwater
Board have estimated the groundwater resources in the State, using guidelines and
recommendations of the Groundwater Estimation Methodology as adjusted in
1997 (GEM97) and modified for hard-rock terrain. The groundwater drafts were
computed by comparing data from the crop water requirement method and the
unit draft method, the latter based on observation wells and assuming an annual
154
Department of Mines and Geology & CGWB, p. 12.

Department of Mines and Geology & CGWB, p. 12, 16; Radakrishna, pp. 15, 20f.
156
Central Ground Water Board 2002, p. 4.
155
77
growth rate of five percent in the total number of bore wells.157 The estimations
were further divided into monsoon and non-monsoon season, command- and noncommand area.
Two methods were used for calculating natural recharge: the water table fluctuation method, and the rainfall infiltration factor method. In addition to precipitation,
the former takes into account return seepage from irrigation, and seepage from surface water bodies (tanks and ponds) and other sources (water conservation structures).158 For rainfall infiltration, return flow from irrigation (both by groundwater
and surface water) and seepage from canals, tanks/ponds/other water bodies and
other water conservation structures (the latter held to be negligible due to their low
number) were also added to the precipitation.
Based on these estimations, the last five-year report from the authorities (published in 2004) states that in the Bangalore region, the total annual groundwater recharge was 13,486 ha/m/year and the overdraft was 24,989 ha/m/year.159 In other
words, the stage of groundwater development was much over 100 percent, and the
area was therefore categorised as over-exploited as an area without scope for future development.160
The severe situation has also been expressed as follows. In 64 percent of the
bore wells tested by the Department of Mines and Geology, the water level had declined considerably: whereas water could be extracted from a depth of 24-30 m (80100 feet) earlier, it was now difficult to find it even at 75 m (250 feet). A senior
Department official informed the media that people have drilled bore wells but
these are not going to be sustainable sources. In some areas bore wells have been
drilled up to 365 m (1,200 feet).161 At least 10 percent of the bore wells have reportedly dried up completely. Bangalores public Water Board, which has somewhere between 3,000 and 6,246 bore wells throughout the city centre, has noted
457 of these wells as defunct or dried up.162
The Geological Society of India, which is located in Bangalore, holds that in
joints and fissures of granitic rock, water can be found at depths of approximately
90 m. It seldom recommends that a bore well be drilled deeper than 60 m over 96
percent of the yield is found within this span, as the joints, fissures and other waterfilled openings occur here.163 At larger depths, the groundwater flow is more often
157
Department of Mines and Geology & CGWB, pp. 26ff, 16; Central Ground Water Board
Western Region, web page About us. CGWB has so far explored potential aquifers to a depth of
200 m in hard-rock, but holds that exploration also of deeper aquifers would need to be carried
out in order for potential aquifers to be exploited in the future, CGWB web page (a).
158
Cf. how Nataraju et al. apply the method.
159
Figures for Bangalore North and South Taluks.
160
Radakrishna, p. 8, defines development of groundwater as to arrest [the] natural discharge
and put it to purposeful use. The over-exploited areas were previously categorised as black.
161
Chauhan.
162
BWSSB, p. 12, according to which the higher number. In Anonymous 2008d, the lower number is mentioned.
163
Radakrishna, p. 24.
78
reduced, but in the case of master joints, the yields may be significant from a bore
well intersecting such a joint. No data seem to exist on the occurrence of master
joints in the Bangalore region, however.
In some parts of the State, people call the adda man to drill horizontal bore wells
when further deepening of a dug-well (from a current depth of up to 75 feet, 23 m)
appears fruitless. Drilling is then done from inside the well. The adda bore can
stretch up to 24 m (80 feet) and parallel ones can be made because, as the borer
Mohammad explains, though these water veins are located so close to each other,
they arent usually inter-connected.164 Instead, the horizontal bore wells usually
draw water from the top layer of the soil, and will attract water from the neighbouring one acre (0.4 ha) area. With groundwater recharge measures adopted in the
catchment area, adda bores are held to be sustainable.165
One may wonder how serious matters are at this point. Beyond doubt, most
open (dug) wells are dry or about to become so, and bore wells are being drilled
much deeper than previously. However, as millions of Bangaloreans (not to mention hospitals, large restaurants, and hotels) in fact depend on groundwater, it can
be assumed that certain areas, or pockets, give substantial yields. When the Water
Board announced its inability to supply the citys inhabitants with enough drinking
water from the Kaveri in the summer of 2007, the Corporation assured everyone
that it would drill 100 new bore wells.166 This indicates that some authorities either
perceive the over-exploitation situation as less grave than others do, or choose not
to listen to the experts. It is not known whether an application to drill these wells
was eventually handed in (only to be rejected).
However, if there is more available groundwater than has been calculated, because recharge to the aquifers is larger than calculated, the GEM97 methods now
used for estimating the groundwater resources may need to be supplemented with
others. We will therefore take a closer look at other potential methods.
4.4 Alternative means of estimating recharge

Groundwater is characterised by its slow movement and the fact that it has been
accumulated in its aquifers over long periods. Recharge, or replenishment, of an
aquifer takes place as a result of precipitation and seepage from surface water in
rivers, lakes, oceans and other reservoirs. Rice fields that stand under water for long
periods at a time also contribute to groundwater recharge, as do other traditional
irrigation practices. On the contrary, the water that floods over bare land areas during, e.g. the monsoon season is generally lost as run-off to various water bodies or
used by plants, or is subject to evaporation before it could seep down to reach aquifers in the bedrock. The infiltration capacity of the soil, permeability and presence
of residual deposits and vegetation cover on the bedrock are decisive factors, as we
have seen.
164
Padre.
Ibid.
166
Anonymous 2007f.
165
79
Recharge further depends on the water movement from the recharge zone,
which can take several centuries. When water is being pumped from the depths
where it is referred to as fossil due to its geological age, it should hence not be
conceived of as a renewable source in the ordinary sense of the word.
In the literature, it is stressed that studies of the water balance are important for
the establishment of local and regional water budgets in semi-arid areas. Similarly,
the issue of estimating recharge is seen as a key component in any model of
groundwater flow, and to establish the potential of extraction. However, there is a
great deal of uncertainty in the estimations and models of recharge, not the least in
crystalline bedrock.167 The patterns of recharge are always complex, due to geology,
topography, weather, and other conditions. In a semi-arid area such as the Bangalore region, natural recharge comes from infiltrating precipitation, and indirect recharge via seepage from lakes, tanks, water-holding constructions and the like adds
to this. In addition, gravitation directs the flow of water from higher areas to lower
ones, especially in undulating terrain such as Bangalore has. Recharge is also subject to disturbance, for instance by pumping from wells.168
All in all, estimating recharge conditions in hard-rock terrain is very challenging.
Ramesh Chand et al. write that [a] reliable estimation of recharge in hard-rock aquifers is a difficult task in view of wide spatialtemporal variations in the hydrological
and hydrometrological conditions [The] methods require analysis of large volumes
of hydrological data (precipitation, surface run-off, evapotranspiration, change in
groundwater storage, etc.) accumulated over a considerable time span, which is generally inadequate, lacking or unreliable in many areas (emphasis added).169 In India, systematic planning and budgeting measures began only in the late sixties, 170 a fact
which partially explains the relatively small amount of data available.
Richard Healy & Peter Cook hold that it is highly beneficial to apply multiple
methods of estimation and hope for some consistency in results even though
consistency, by itself, should not be taken as an indication of accuracy.171 Although the responsible authorities in Karnataka have explained that GEM97 is an
upgraded version of the methods previously employed,172 there might still be room
for improvement in terms of methods and approaches. For instance, it seems as if
evapotranspiration is not taken into account when calculating water table fluctuation.
Another important example is that the Department of Mines and Geology and
the CGWB do no appear to have estimated or discussed the recharge potential in
Bangalores urban environment. David Lerner points out that [h]ydrologists once
167
Cf. Bockgrd, who notes that recharge as such can, in a wider sense, mean all water that enters
the bedrock groundwater system, including saturated flow from adjacent aquifers, pp. 9f.
168
Olofsson et al. 2001, p. 120.
169
Chand et al., p. 821.
170
Chandra, p. 337.
171
Healy & Cook, pp. 91f.
172
Department of Mines and Geology & CGWB, pp. 20ff.
80
believed that cities reduced the amount of recharge to the underlying groundwater
because of impermeabilisation of surfaces. This myth has been widely discredited
Now most hydrogeologists accept that the infrastructure for water supply and
storm drainage generates large amounts of recharge through leaks.173
Lerner suggests that numerous sources contribute to recharge including leaking mains and pipes through which water is imported, storm-water and waste-water
drains, sewers, over-irrigated lawns and golf courses, fountains, and deliberate artificial recharge. Several methods are possible when estimating the recharge and
modelling the water balance, and a holistic approach should be kept in mind.174 The
Ministry of Water Resources approach is, however, that the precise assessment of
recharge and discharge is rather difficult, as no techniques are currently available
for their direct measurement.175
In the case of Bangalore, the question of a possibly re-defined way of estimating
recharge is highly relevant. The city is very spread out, with many tanks and lakes
(and an even larger number of former tank-beds). After the decision to incorporate
surrounding municipalities and villages, the city borders now embrace a peri-urban
and semi-rural area including some farmland and a reserved, albeit shrinking, green
belt. More and more buildings practice roof-top rainwater harvesting, thereby contributing to the recharge. Most buildings are equipped with underground sumps in
which water is stored, and which may leak considerable amounts. All thus add water more or less directly to the aquifers and this contribution needs to be included
for the sake of more reliable estimations.
Another substantial source of recharge to the aquifers is the losses in the distribution system the pipes through which water from the Kaveri is transferred by
the public utility. The system within the former core city is up to 60 years old and
the pipes are affected by corrosion. This has resulted in leakages amounting to approximately 30-40 percent, but possibly up to 50 percent, of the water drawn from
the Kaveri.176 This figure is relatively high and unviable both economically and in
terms of water management. It is also beyond excuse when considering the technological advances made in the field, as well as the costs involved in not attending to
such water losses on the way from source to end-consumer.
In a densely-populated city, there are also factors affecting recharge negatively.
Many surfaces such as parks, paths, roads and parking lots are rendered less permeable due to heavy usage. The layer of soil easily becomes over-compact. In Bangalore, much of the natural drainage system in valleys and interconnected lakes has
173
Lerner, p. 144.
In terms of evaluated methods, cf. Bockgrd; Olofsson.
175
Ministry of Water Resources web page Ground water how it is assessed. It was previously
held that the techniques for direct measurements are expensive (http://www.wrmin.nic.in/
resource/default3.htm, retrieved December 15, 2006, now taken away).
176
Tsuchiya. The Water Board in its Performance Report 2005-06 notes that the initial overall
leakage was 64.25 % and current level is 48.67%, p. 23. Some of the unaccounted-for water
alternately termed non-revenue water disappears because of illegal connections being made to
the network, and some is distributed but never paid for.
174
81
also disappeared, due to various types of encroachment for residential areas, infrastructure, shopping malls, etc.177
Much of the urban groundwater recharge is due to leakage and overflow from
drains and the sewerage network, and might contain water contaminated to various
degrees. Supplies drawn from wells recharged with such water will be sub-standard.
This is the scenario in most of Bangalore.
4.5 Quality issues related to the groundwater resources

Groundwater is generally superior to surface water in several respects, such as the
content of bacteria and organic matter and compounds. However, samples taken
and analysed by the Chemical Laboratory of the Department of Mines and Geology
during 2003 and 2006 show that the quality of Bangalores groundwater is poor.
The 2003 study collected 918 samples from 735 locations across an area of 400 km2
of the city and its (then) environs, for 15 parameters. Both this and the study of the
whole of Karnataka in 2006 show widespread and rising contamination, with traces
of nitrate, iron, fluoride, bacteria, total dissolved solids, etc. over desirable limits
and sometimes also over the permissible limits laid down by the Bureau of Indian
Standard specification (IS 10500:1991) for drinking water.
In 2003, levels of nitrate ranging up to 666 mg /l were found. In 35 percent of
the samples the level exceeded the permissible limit of 50 mg/l.178 In 2006, when
only 34 samples were collected from the whole Bangalore Urban District, the highest level found was 194 mg/l.179 Levels above the permissible may result in
methaemoglobinaemia (the Blue Baby syndrome) and cancer.
For unknown reasons, only 100 samples were collected to trace bacteria.180 Coliform bacteria were found at levels up to 23 MPN (Most Probable Number) per 100
ml, though the permissible limit is 0 MPN. Some 74 percent of the groundwater in
Bangalore city had bacteriological contamination.
Reportedly, over 15 percent of the groundwater had a high iron content. The
recommended desirable limit for potable water is 0.3 mg/l, but in the absence of
other sources of potable water, the permissible limit is 1.0 mg/l. In many areas, a
level of 16.0 mg/l has been detected. The total hardness of water in many areas has
touched over 1,000 ppm (parts per million) The permissible limit is 600 ppm. Fluoride at levels of 2.5 mg/l (permissible limit 1.5 mg/l) has been detected in Yelahanka, the northernmost part of Bangalore.
177
Especially in times of heavy rain, the low-lying areas of Bangalore are subjected repeatedly to
severe flooding. This causes much damage to infrastructure and civic amenities and has health
impacts due to overflow and/or back-ups from sewers.
178
Department of Mines and Geology 2003, p. 16. Some sources give a desirable limit for nitrate
as 45 mg/l and permissible as 100 mg/l. The WHO guideline is 50 mg/l.
179
Department of Mines and Geology 2006.
180
At the beginning of 2008, the Water Board was, for the first time, to test groundwater from all
the 3,000 borewells across the city for contamination, due to outbreaks of cholera and gastroenteritis, Anonymous 2008a.
82
Altogether, the Department concluded in 2003 that 50 percent of the groundwater was not potable, and that if the present trend continues, soon all the
groundwater will be contaminated from one pollutant or the other rendering precious groundwater useless.181 The recommended action, apart from checking pollution was to recharge the groundwater aquifer through rainwater harvesting.
The health problems that physicians and paediatricians in Bangalore have related to high concentration of bacteria in groundwater are gastroenteritis, typhoid,
hepatitis and cholera. Equally, anaemia, methaemoglobinaemia and respiratory diseases have been documented as potential outcomes of nitrate contamination. Dermatitis is also prevalent.182
In the villages on the outskirts of Bangalore, ammonia and nitrate-based fertilisers used in farms may be polluting the water. The predominant reason for the inferior quality throughout the city is, nevertheless, that most wastewater is left untreated. Only some 40 percent of Bangalore is covered by sewerage networks. The
capacity for secondary treatment of sewage is limited to 721 MLD, and for tertiary
treatment the limit is 70 MLD.183 In addition, the sewage pipes are old, and leak.
In many areas, the groundwater tastes so salty that it is non-potable. Inland salinity in groundwater in a semi-arid region such as Bangalore can be due to aridity
and high evaporation. It can also be related to hydrogeological reasons, i.e. geogenic sources or to accumulation of table salt (NaCl) from human consumption,
again because of sewage leaking into the aquifers. The salty taste can also indicate
high concentrations of potassium. The Karnataka State Pollution Control Board
has found levels of potassium as high as 36-38 mg/l in the Bangalore area.184
No persistent pharmaceuticals in groundwater seem to have been reported, but
such are nonetheless likely to occur as residues from sewage.
4.6 Summing up
The importance of groundwater has steadily increased in India, boosted by improved technical means to pump water from greater depths, but also because of
subsidised electricity, lax regulations and a growing demand for freshwater. The
groundwater tables are declining, more rapidly in cities. Although it cannot be said
exactly how large a part of Bangalores population or businesses depends primarily
or to some extent on groundwater, we can assume that a clear majority is affected.
In the rural or rural-like peri-urban areas around the city of Bangalore the dependence on groundwater has been close to total, making the inhabitants very vulnerable to prevailing natural conditions. People living in the typically urban environment are more likely to be connected to the public network and therefore able to
rely on surface water, at least partly.
181
Department of Mines and Geology 2003, p. 20.

Anonymous 2006a; Gandhi 2007a; Gupta et al.; Anonymous 2008a, b, d.
183
JNNURM, pp. 66f.; Water Board p. 18.
184
Karnataka State Pollution Control Board.
182
83
Due to the size of overdrafts in relation to the calculated recharge, the authorities have stated that the stage of groundwater development is over 100 percent in
the Bangalore region. The soils of the region are well-drained and generally semipermeable but with a moderate-to-relatively-low infiltration capacity at the lowest
in the urbanised areas with hardened surfaces. The peninsular gneissic complex has
undergone different degrees of secondary decomposition and thus contains layers
of highly- or semi-weathered zones; but at greater depths the hard-rock lacks much
primary porosity and hence there are few aquifers. Overall, most of the groundwater in joints and fissures should be found at depths down to about 60 m, and the
natural recharge potential should not be very high, given the conditions mentioned.
The authorities methods for estimating the figures for the Bangalore area have
been modified to take account of hard-rock terrain, but give data for natural recharge only. Recent research on urban environments suggests that the infrastructure for water supply, storm water, and wastewater drainage, suffers greatly from
leakage. This increases the total recharge potential. Urban recharge is widely recognised as being equivalent to or higher than that in corresponding rural areas. Estimating groundwater recharge for the urban environment is complicated, though,
even given an integrated analysis of each recharge component.185 This will indeed be
a difficulty in the case of Greater Bangalore, where the diverse urban and rural
characteristics of the city must be taken into account. The high amount of corroded
piping and mains plays a major role, as does the growing number of structures for
artificial recharge (RWH). Reaching more accurate data on the groundwater situation will remain difficult, but is necessary.
Deeper discussion of groundwater in relation to the (missing) regulatory structures will be delayed until after the exploration of the relevant legal matters in
Chapter IX.
5 Sharing Kaveris water

5.1 Background: a river and its Tribunal
The Kaveri is one of the longest inter-State rivers in India. Its 765-802 km stretch,
flowing in a south-easterly direction, originates in the Western Ghats in Karnataka
(by Coorg) and reaches the Bay of Bengal in the State of Tamil Nadu.186 Apart from
Karnataka and Tamil Nadu, the river basin includes parts of the State of Kerala in
the west and a part of the Union Territory of Pondicherry which occupies a coastal
area in Tamil Nadu. As well as Bangalore, several towns and villages depend almost
entirely on the Kaveri for their water supply. Moreover, the river has for centuries
been of chief importance for agriculture. Indias first and still functioning hydroe185
Lerner, pp. 148, 151.

It has proved virtually impossible to find reliable, neutral or otherwise authoritative sources
on any aspect or figure in the case of the Kaveri. Most facts that are available can be disputed by
reference to other sources which give a quite different picture. One example is the manifold
statements on the length of the river, or which tributaries are the ones of major importance.
186
84
lectric power plant is on the Kaveri, and powers the gold mining in Karnataka.
Both States grow water-intensive crops paddy in Tamil Nadu and sugarcane in
Karnataka but the semi-dry and horticultural crops dominate.
The Kaveri has been the object of sharing agreements, negotiations and conflicts for more than a century. Each time a poor monsoon leads to shortage of water, the dispute between farmers especially in Karnataka and Tamil Nadu intensifies. Ramaswamy R. Iyer has written that the Kaveri is a fabled river with strong historical, religious, and cultural associations in both Karnataka and Tamil Nadu. In
both States, mention of Cauvery waters evokes a strong emotional response.187
The dispute is also regularly a major issue in electoral politics.
The use and development of the river were first regulated in 1892, during British rule. A revised agreement of 1924 was to be given an overhaul after 50 years. At
the end of this period, the main parties Karnataka and Tamil Nadu sat down
for several fruitless rounds of discussions and negotiations. Tamil Nadu contended
that the agreement provided for an extension in 1974 and was still valid as such,
while Karnataka wanted a renewed approach on the ground that the agreement had
been entered upon by two unequal partners the then princely State of Mysore,
and the Madras Presidency which was under (stronger) colonial rule.
India has seventeen major rivers that flow through two or more States. A dispute-settling system has existed for over 50 years, under which tribunals have been
set up for five rivers. The Kaveri dispute is special among these as it relates to water that has long been over-allocated.
5.2 Legal basis of the Tribunal

Since the Kaveri is an inter-State river, its regulation and development are a matter
for the Union Parliament. The Republic of India applies a division of power between the federal Union and State governments (and Union Territories), regulated
in the Constitution (Art 246). Areas of legislation are enumerated in three lists in
the Seventh Schedule under the Constitution. Local government, public health and
sanitation, land and water are on the State List; inter-State rivers on the Union List.
According to Entry 56 of the Seventh Schedule the power of the Union Parliament in the case of inter-State rivers applies to the extent to which such regulation
and development under the control of the Union is declared by Parliament by law
to be expedient in the public interest. The River Boards Act, 1956, was enacted
under this provision and covers issues relating to use, distribution and allocation of
the waters of inter-State rivers and their valleys. It has remained a paper law.
Further, the Constitution contains a special provision on Disputes relating to
Waters. The first clause of this reads
Parliament may by law provide for the adjudication of any dispute or complaint
with respect to the use, distribution or control of the waters of, or in, any interState river or river valley (Art 262(1)).
187
Iyer 2002a.
85
Pursuant to this, the Inter-State Water Disputes Act, 1956, was passed. The Act has
been heavily criticised over the years, partly because of the long time-frames and
slow process that the Act allows.188 Some amendments came into force in 1968, followed by a major overhaul in 2002. However, the Act still only contains procedural
provisions, with no guidance on how substantive matters are to be regulated. The
Act provides for an adjudication procedure; it is hence obligatory for all parties to a
dispute to appear before the Tribunal and effectuate its decision.189 The Tribunal
has the same powers as those vested in a civil court, including the power to require
any documents and materials to be produced before it. As part of the process, it
may require the parties to carry out or permit the carrying out of any surveys and
investigations it may deem necessary for the adjudication.
In 1970 and again in 1986, the Government of Tamil Nadu made formal requests to the Central Government under the Disputes Act, asking it to constitute a
special Tribunal that could adjudicate the Kaveri conflict. Sec 4 of the Act requires
the Centre first to try to resolve the dispute through negotiation. However, talks
continued to be unsatisfactory to the parties and when the Central Government
took no further action, a farmers society in Tamil Nadu felt compelled to approach
the Supreme Court. In 1990, the Court as a result directed the Centre to set up the
Kaveri Water Disputes Tribunal.190 Within a year, the Tribunal presented an Interim
Order, following a number of miscellaneous civil petitions from both Karnataka
and Tamil Nadu.191 The Tribunal directed Karnataka to release a certain amount of
water yearly, a decision which immediately caused outbreaks of violence with fatal
outcome, including suicide and suicide threats among farmers.
The Disputes Act stipulates that a decision of the Tribunal shall be final and
binding on the parties to the dispute and shall be given effect to by them, and after its publication in the Official Gazette [the decision] shall have the same force
as an order or decree of the Supreme Court (Sec 6(1), (2)).192 By referring to the
Tribunal as having a judicial function and weight equivalent to that of the Supreme
Court, the legislator has expressed that an aggrieved party also has no option of appealing to the Supreme Court itself. On the contrary, the Constitution and the Inter-State Water Disputes Act contain provisions with the effect of excluding other
courts from the dispute:
188
Cf. Anand; Iyer 2003, 2007; Richards & Singh; Salman 2002.
As distinct from the arbitration settlement technique, where parties refer their dispute to an impartial body and agree to be bound by its resolution.
190
Tamil Nadu Cauvery Neerppasanavilaiporulgal Vivasayigal Nal v. Union of India & Others (1990) 2
SCJ 547. The Tribunal consists of three members, judges, assisted by two assessors.
191
Ministry of Water Resources, Notification S.O. 840(E) (December 10, 1991).
192
Though the formulation might seem to indicate otherwise, the decision is binding only after it
has been published in the Gazette. This is because any of the parties can make a further reference
to the Tribunal within three months of final decision, to seek clarifications or a supplementary
report (Sec 5(3)).
189
86
Notwithstanding anything contained in any other law, neither the Supreme Court
nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act (Sec 11).193
Several scholars have commented on this provision, writing that though it is intended to bar courts from reviewing the awards of the tribunal in question, such interventions have only increased in number.194 However, as long as the Supreme
Court does not treat the water disputes as such, it has the necessary jurisdiction.
One illustration is the award of the Narmada Water Dispute Tribunal, which was
challenged on the aspects of rehabilitation and resettlement, human rights and ecology. The Supreme Court dealt with the question of whether the project was open
to question from the environmental and rehabilitation aspects.195 The Court also
upheld its jurisdiction in the matters raised before it in the case of Narmada Bachao
Andolan v. Union of India & ors:
This Court, as a Federal Court of the country specially in a case of inter-State
river dispute where an Award had been made, has to ensure that the binding Award
is implemented. In this regard, the Court would have the jurisdiction to issue necessary directions to the State which, though bound, chooses not to carry out its
obligations under the Award Just as the execution of a decree can be ordered,
similarly, the implementation of the Award can be directed (emphasis added).196
As the quotation shows, the Supreme Court takes upon itself the role of implementing agent, or of an agent that is to ensure implementation through the State(s)
in question.
In the Kaveri dispute, the Supreme Court has issued a number of directions
over the years. This has been done primarily on the grounds of non-implementation of Tribunal decisions and those of the Supreme Court itself, as well as issues
of compliance with the decisions of the especially established Cauvery River Authority. Karnataka, for instance, questioned whether the Tribunal could issue an Interim Order and whether it had the authority to grant interim relief.197
The State of Karnataka has several times shown contempt for the Tribunals
decision-making authority. It has, for instance, claimed that the Tribunal has no
inherent power like an ordinary civil court [but] only those powers which have
been conferred to it under the Act, and that the Supreme Court had no jurisdiction.198 However, the Supreme Court expressed in the Narmada Bachao verdict that
193
Cf. the Constitution, Art 262(2); Notwithstanding anything in this Constitution, Parliament
may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction
in respect of any such dispute or complaint.
194
Upadhyay & Upadhyay, p. 44; Iyer 2002b.
195
Upadhyay & Upadhyay, p. 44; Iyer, in Venkatesan 2007.
196
(2000) 10 SCC 664 = AIR 1999 SC 3345. Cf. (1990) 3 SCC 440.
197
Tamil Nadu Cauvery NPV Sangam v. Union of India and Others (1990) 3 SCC 440. Cf. Iyer in
Venkatesan 2007; Upadhyay & Upadhyay, p. 44.
198
Tamil Nadu Cauvery NPV Sangam v. Union of India and Others (1990) 3 SCC 440, para 8-9.
87
[j]ust as an ordinary litigant is bound by the decree, similarly a State is bound by

the Award.199
The most striking example of disrespect for the Tribunal is that, shortly after
the Interim Order in 1991, the Karnataka Cauvery Basin Irrigation Protection Ordinance was promulgated, in an express effort to nullify the effect of the Order. It
was to have effect notwithstanding anything contained in any order, report or decision of any Court or Tribunal (whether made before or after the commencement of
this Ordinance), save and except a final decision under the Inter-State Water
Disputes Act (emphasis added).200 However, the President of India made use of
his authority to question the Ordinance, which the Supreme Court thereupon pronounced had no constitutional validity. The flowing waters of Kaveri were not for a
riparian party to appropriate:
The waters of an inter-state river pass through the territories of more than one
state. Therefore, it cannot be said that such waters belong to any particular state.
Neither the state from which the river originates, nor the state where the river
joins the sea can claim complete ownership of waters in an inter-state river (emphasis added).201
An individual State of the Federal Republic of India lacks such sovereign powers
over its territory as to give it independent decision-making power and political
freedom over that part of a river which flows through it. The States are bound by
the Constitution as well as Parliamentary laws made there under with regard to
matters not delegated to them. The Constitution provides for a clear division of
power, meaning that even if the Disputes Act had not been in force, it was beyond
Karnatakas legislative competence to take action in the way it did.202 As we will
see in Chapter VI, the law conventionally does not allow for ownership of water.
5.3 Final order

5.3.1 Some relevant details
After the Interim Order, several rounds of talks took place between the Chief Ministers of Tamil Nadu and Karnataka, but the parties failed to find any common
ground for a settlement. In August 1998, the Centre constituted a Cauvery River
199
(2000) 10 SCC 664 = AIR 1999 SC 3345.

The Karnataka Cauvery Basin Irrigation Protection Act, (Act 27 of 1991), para 4.
201
In Re Cauvery Water Disputes Tribunal AIR 1992 SC 522 (22 November 1991). Little information
is available on the Karnataka Cauvery Basin Irrigation Protection Ordinance or, later, the Act on
the issue. The name suggests that irrigation was in need of protection, whereas the water supply
was not perceived as at risk. For a comment on the Constitutional questions raised in the case, cf.
Salman 2002, p. 233.
202
The Harmon doctrine which was suggested by General Harmon in relation to the case
United States v. Texas, 162 U.S. 1, 16 S. Ct. 725, 40 L. Ed. 867 (1896) as a theory of territorial sovereignty between riparian states but never adopted by the U.S. is of no interest in the Kaveri dispute and will therefore not be dealt with here. It was mentioned shortly in the Report, Vol. III, p.
2f., as Karnataka made reference to it.
200
88
Authority to ensure implementation of the Interim Order. A Monitoring Committee was set up to assist the Authority by collecting information and data.203
The final arguments were delivered before the Tribunal from January 2002 onwards. Five years later, in February 2007, the Final Order and Decision was announced, together with a Report of some thousand pages and five volumes, and a
number of maps of the basin.204
The utilisable quantum of waters of the Cauvery had been determined to be 740
TMC in a normal year, on the basis of 50 percent dependability (meaning that the
flow is expected to be equal to or higher than 740 TMC per year in 50 years out of
100). The Tribunal decided on allocation of the available water, with 270 MLD to
Karnataka and 419 MLD to Tamil Nadu, as well as portions to Kerala and Pondicherry.205 Karnataka was thus ordered to release a total of 192 TMC yearly, of which
10 for environmental purposes; the Tribunal reserved a quantity of water for environmental protection and inevitable escapages into the sea. It was further ordered
that tentative monthly deliveries divided into ten daily intervals during a normal year were to be made available by Karnataka at a certain inter-State contact
point.206 Should the yield of the river be less in a distress year, the allocated shares
are to be proportionately reduced among the four parties.207
As the Tribunals decision is of optional character, it is also spelled out that alterations, amendments or modifications of all or any of the clauses are possible, by
agreement between the parties. However, the States concerned can by mutual
agreement, and in consultation with the Regulatory Authority, make any amendment in the pattern of water allocations.208
5.3.2 Groundwater not to be included
Although the groundwater resources admittedly constitute a relevant factor for equitable apportionment of the Kaveri waters, they are omitted from the considerations. The Final Order rules that the use of underground waters shall not be
reckoned as use of the water of the river.209 The Tribunal seems to have assumed
that there are too large uncertainties in relating groundwater to other phases of the
hydrological cycle. For instance, reference is repeatedly made in the Report to how
the important role of underground water flow, though known to the hydrologist,
is not fully calculable from the technical point of view and, therefore, not fully cognizable
203
Ministry of Water Resources, Notification S.O. 675(E), August 11, 1998; and S.O. 1022 (E),
November 15, 2000, as mentioned in the Tribunal Report, Vol. I. The Authority and Committee
are seemingly impotent and superfluous.
204
The Order can be found in full text on a web page of the Ministry of Water Resources, Cauvery Water Disputes.
205
Final Order, Clauses IV-V.
206
Clauses V, IX.
207
Clause VII.
208
Claus XI.
209
Clause XII.
89
as yet from the legal point of view (emphasis added).210 The perceived difficulties associated with attaining accurate estimations seem more as an excuse not to take the
groundwater into account. The fact that the seventy pages on groundwater in the
Report are rather inconsistent indicates that the three Judges had different levels of
understanding of the hydrological cycle, and/or the importance of an integrated
approach on water.
5.3.3 Water supply to Bangalore
In the part of the Tribunals Report that deals with domestic water requirements,
the principle of priority of drinking water over other beneficial uses of the Kaveri
water was upheld. The Tribunals decisions on allocation nonetheless leave many
questions unanswered, and several of the calculations lack thorough scientific
grounds. For instance, it is assumed that 50 percent of the drinking water requirement is met from the groundwater sources, based on the assertion that it is generally seen that wells and tube wells in urban and rural areas cater to substantial requirements of drinking water (emphasis added).211 In comparison with statistics
from the Ministry of Water Resources, this figure mirrors what may be normal in
urban environments, but is nowhere close to the situation in rural areas. The Tribunals point of departure appears to lack good backing in this regard, as becomes
clear from comparisons with data readily available from official Indian authorities.
The Tribunal might also have reached certain conclusions due to the Counsel of
the parties neither a Tribunal nor a Court is under any general obligation to take
an active role, e.g. by filling in gaps in material provided to it.212 The Tribunal decided that in projecting future demand coupled with population growth, the year 2011
should suffice rather than 2025 or 2051 as was suggested. The population growth
was calculated from the 1981-91 census. However, for Bangalore (by the then
boundaries of the city), the population projection was based on the census of 2001
which was furnished to the Tribunal by Tamil Nadu. (Apparently, the State of
Tamil Nadu provided the Tribunal not only with more recent data, but also more
detailed such.) The Tribunals assumptions for Tamil Nadus drinking water requirements therefore seem to have a different, and more up-to-date, basis than
those for Karnataka save for Bangalore.213
After referring to various national standards, the Tribunal arbitrarily put the
drinking water requirements at 135 lpcd for 25 percent of the urban dwellers, and
at 100 lpcd for the remainder, [s]ince we do not have the detailed information re210
Tribunal Report, Vol. III, p. 120, referring to p. 312 in an anthology compiled by Garretson,
Olmstead & Hayton. It was not made transparent, though, that this formulation comes from an
(unnamed) professor of law who wrote it in 1967 in the context of international drainage basins, a concept in itself rather unfamiliar to lawyers at the time.
211
Report, Vol. V, pp. 99f.
212
This laissez-faire nature of the judicial procedure and function of the court will be discussed in
more detail later. Cf. Sathe, pp. 195f.
213
Cf. Report, Vol. V, p 103.
90
garding the population of various towns and cities in the Cauvery basin.214 However, it was determined as 150 lpcd for the Bangaloreans.
Another questionable example is that by the time of the Final Order, the Government of Karnataka was allocating 19 TMC yearly (1,469 MLD) to Bangalore
from the Kaveri, for the Water Board to supply its customers with.215 According to
the Report, Karnataka stated the total existing and ongoing water supply as of June
1990, within the States whole part of the basin, at 28 TMC. It then claimed 22 additional TMC.216 This added up to 50 TMC. The claims were, however, dismissed:
the Report cites that Karnataka, in June 1990, had indicated that existing and ongoing drinking water schemes for the city were for 6.52 TMC and 8.00 TMC totalling
14.52 TMC (sic, emphasis added).217 The Tribunal decided to consider the existing
requirements according to the latter indication, i.e., as 14.52 TMC.
The claim made regarding Bangalores needs was clearly exaggerated by Karnataka; but even so, the Tribunal should have given a proper explanation of why it
based a decision on data more than 15 years old, and without consideration of the
growing demands since 1990 or for the future. It is difficult to see that water for
drinking was prioritised by the Tribunal over other purposes.
The debatable assumptions do not end there. As mentioned above, the topography of Bangalore brings only the western part of the city (as per the boundary
prior to January 2007) within the Kaveri river basin, whereas the rest drains into
another basin. In the Tribunals Report, it is simply concluded that since very accurate determination of the city area is difficult it has been considered that the city
area falls 1/3rd in the basin and 2/3rd outside the basin which was repeatedly
mentioned during the arguments (sic).218
No map has been found on which the administrative boundaries of Bangalore
and the river basin boundaries are marked, and it has proved impossible to calculate
where the ridge that divides the city runs. Different maps show this boundary
somewhat differently (Maps 4-6 below), and what seems to be the only available topographical map, surveyed in 1962-1963, is to a scale of 1:250,000; thus not very
detailed. Establishing the location of a water divider cannot be done with absolute
certainty; especially the direction which run-off from precipitation takes in an urban
environment is influenced by factors other than topography.
Yet, it appears that the Tribunal decided on proclaiming a third of the Bangaloreans as entitled to Kaveri water, rather than those clearly situated within the river
basin. The details in this regard remain to be explicated by interpretation.
214
Report, Vol. V, pp. 98, 102.

The amount is referred to in several newspapers and in Tsuchiya, p. 1, as being in accordance
with an agreement between Karnataka and the parties downstreams, valid up to 2010. As mentioned above, the Water Board only drew some 11 TMC from Kaveri at this point.
216
Statement of Case, KAR-1, pp. 161-163, filed September 1990, as cited in Vol. IV, pp. 148f.
The Water Boards future needs for Bangalore were broken down as 30 TMC, and for rural areas
Karnataka required 10 TMC more.
217
Report, Vol. V, pp. 101f.
218
Report, Vol. V, p. 101.
215
91
Map 4. River basins. Bangalore Urban District marked.

Inset: Map 5. Basin boundary through Bangalore.
Map 6. Bangalore Urban District, divided

into three Taluks and two watersheds.
Taluk
boundary
Bangalore
Urban
District
Adapted from KRSAC, p. 17. Inset: Plate No 2,

Cauvery Water Disputes Tribunal.219
Watershed
boundary
Adapted from Department of Mines &

Geology and CGWB, p. 58.
Neither has any map been found which shows the East Taluk of the Urban District
(cf. Map 6), or the former and/or present boundaries of Bangalore Corporation
within the District.
5.3.4 Domestic purposes as by consumptive use
In allocating water for domestic purposes, the Tribunal assumed that one-fifth of
the water taken from the Kaveri would be fully consumed and depleted from the
river basin, whereas the rest would come back to it as return flow.220 Water requirements for domestic and municipal supply within the basin were thus measured
[b]y 20 per cent of the quantity of water diverted or lifted from the river or any of
its tributaries or from any reservoir, storage or canal.221 In the case of Karnataka,
the consumptive use thus works out to 1.75 TMC according to the Report but
for Tamil Nadu, [t]he consumptive use @ 20 per cent of the surface water works
out to 2.20 TMC which has to be allocated in the share of the State (sic, emphasis
added).222 The difference between the formulations did not result in any difference
in the Final Order, but indicates that the Tribunal lacks some understanding of
how the allocations are to be measured in relation to the portion which is consumed: the allocation must be five times the amount estimated as consumptive use.
219
The Administrative Map of Cauvery Basin and Adjoining Areas was prepared by Tamil Nadu.
Vol. V, pp. 100f.
221
Clause XIV.
222
Vol. V, p. 103.
220
92
The way in which the consumptive use and return flow were calculated was also
not completely in line with current scientific methods. The FAO defines consumptive use as that water is abstracted and used off-stream, with limited or no return
flows returned to the watercourse of origin, in contrast to non-consumptive use
which includes fishing, hydro-power generation, recreation and the like.223 The U.S.
Geological Survey determines the percentage of consumed water from what is
lost due to incorporation/consumption into products, crops, humans and livestock; evaporation/transpiration; inter-basin transfers; and groundwater recharge/seepage. Though this water remains in the hydrological cycle, it is not
available to the river during a period.224 In addition, Peter Gleick refers to consumptive use or consumption also when water has been withdrawn from a source and
made unusable for reuse in the same basin, such as through contamination.225 A
large amount of the water used for domestic purposes will be returned to the system as untreated sewage226 and might therefore not be available to other potential
uses within the accounting period (depending, though, on standards of quality for
different uses). All in all, the amount of water that is consumed from the Kaveri by
domestic use can be presumed to be larger than 20 percent. This affects the total
flow of the river; and it can further be assumed that this effect will increase. Already, very little water reaches the Delta in the Bay of Bengal.
5.4 After the Order

5.4.1 Appeal
The parties, all of which felt aggrieved in one way or another, had the option of
calling the Tribunals Order into question within three months. The decision of
February 2007 was final in the sense that no mechanism for appeal to a higher
court is provided in the Disputes Act. Nevertheless, its Sec 5(3) stipulates that if a
State or the Central Government requires explanation, the matter can be referred
back to the Tribunal for further consideration. Guidance can also be requested on
points not originally referred to it, meaning that new aspects may be raised even at
this stage. In response, the Tribunal may within one year submit to the Central
Government a further report with such explanation or guidance as it deems fit.
The word may seems to indicate that it is entirely up to the Tribunal to decide
whether it wants to give an explanatory report on request.227
If a Clarification is issued, the Final Order of the Tribunal shall be deemed to be
modified accordingly. It cannot be reconsidered and then quashed on grounds of
procedural, legal or factual errors. Likewise, the 1,000-page Report though not
binding can be supplemented by another, but no part of it can be made void as
223
The FAO 2004, p. 17.

Cf. U.S. Geological Survey web page What is consumptive use?.
225
Gleick 2000, p. 41/box 3.1.
226
As mentioned above, only ca. 40 percent of Bangalore is covered by sewerage networks.
227
Cf. that the same word in Sec 4 of the Bill was changed to shall by Parliament when the Dispute Act was passed in 1956.
224
93
such. Both the Final Order and later clarifications must be officially published by
the Central Government.
Karnataka State decided to object to, among other things, the fact that the use
of groundwater in Tamil Nadu was not taken into consideration, a point also questioned by Kerala. Karnataka also raised the issue of water supply to Bangalore, contending that more than one-third of Bangalore falls in the Cauvery basin. Besides
seeking clarification from the Tribunal on these issues, Karnataka, Tamil Nadu and
Kerala also filed petitions under Art 136 of the Constitution for the Supreme Court
to grant special leaves to appeal to it. The Court allowed these, though the Justices
told the parties to try to find an amicable solution to the problem of sharing, as the
Court could not be the final arbiter and a judicial order cannot bring more water.
Rather, modern scientific methods were preferred. The Justices observed that unchecked construction in the countrys major cities vanquished all sources of water
harvesting and conservation, such as in tanks.228
Karnataka also filed a suit under Art 131, questioning the setting up of the Tribunal in the first place and claiming that the Supreme Court had the original jurisdiction, to the exclusion of any other court. As indicated above, Karnataka has not
acknowledged the Tribunal as a legitimate decision-maker over issues relating to its
territory. Without doubt, the Tribunal neglected, and/or lacked understanding of,
many facts and conditions in the complex dispute over Kaveris waters, but this
does not warrant an appeal being granted by the Supreme Court, especially as the
Court is barred from entering upon the factual aspects and directing the parties related to substantive matters of an inter-State dispute. It is therefore unclear whether
the Supreme Court will allow this petition, and when it will deal with the ones filed
under Art 136. Regarding the Tribunal, its Clarificatory Order will come in August
2008 at the earliest, if previous inter-State Tribunals are anything to go by.229
P. Leelakrishnan has indicated that the rights of States have taken precedence
over the welfare and rights of people living in the riparian regions in different
States. He continues that, however, in the above-mentioned Narmada case, the majority of the Judges of that Tribunal argued that not only the people living on the
banks of the river but also the people pining for water in the arid and semi-arid regions of other States would benefit from the raising of a dam on the Narmada
River.230 Some of the points made in this case might be of interest to the Supreme
Court when determining the sharing of Kaveris water. The questions of equity, ne228
Anonymous 2007g; Anonymous 2007j. Under Art 136, the Supreme Court does ordinarily not
reappraise any evidence for itself in order to determine whether or not a lower court or tribunal
has come to a correct conclusion on facts. Only where the real points requiring determination
have been completely missed and evidence has been discredited on erroneous grounds would the
Court be justified in going into the evidence to avoid grave injustice, as laid down in Sham Sunder
v. Puran, 1990 (4) SCC 731.
229
However, it can also take much longer. The River Krishna Tribunal gave its Final Award on
December 24, 1973 and the Clarificatory Order on May 27, 1976.
230
Leelakrishnan, p. 116; Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751.
94
cessity, and right to (drinking) water as a fundamental attribute of the right to life
need to be discussed in depth.
5.4.2 The Orders practical significance
Pending a decision with legal force on the Kaveri, Karnataka is continuing to use
the water according to the existing regime, including pumping water to supply Bangalore now three times larger via the Water Board. Being in the upper riparian
area, it has geographical advantage over the other parties to the dispute.
Any future adjustment of Karnatakas share would have to be made at the expense of its existing irrigation schemes.231 The dispute and the Final Order already
contribute to internal antagonism between different sectors of water users, i.e.,
farmers needing water to produce food versus the public Water Board that supplies
drinking water; between locations, that is villagers versus city dwellers; and between
approaches, i.e. scientists versus politicians versus judges and legislators, and so on.
A leading politician in Karnataka exclaimed that the Order set the people of the
State against themselves and created rift among urban and rural people.232
5.4.3 Summing up
From the above account of the dispute-settlement body and process, we can note
that the formal legal system seems charged with tensions: both State governments
and water users express distrust of the Tribunal and display disrespect. Protests
mark the perception of the Order among, predominantly, farmers.
Neither the Final Order nor the Report is easily understood many formulations, calculations, and their respective bases simply do not make sense. Some information is seemingly unavailable, such as details of the agreement between the
Government of Karnataka and others about allocating as much as 19 TMC to Bangalores Water Board yearly up to (and including?) 2010. This agreement was not
mentioned in the Tribunals Report and we must conclude that counsel for Karnataka did not bring it up during the proceedings. What is most difficult to understand, though, is the lack of forward-looking displayed. Old data, outdated figures
and pre-historic agreements are the foundation of the decisions made. This strikes
a discordant note with the development India undergoes, and has certainly underwent since the dispute over Kaveri begun.
Instead of the 11 TMC that the Bangalore Water Board was thus pumping at
the time of the Final Order and the more than 17 TMC (1,350 MLD) to be
pumped once the Cauvery Water Supply Scheme Stage IV Phase II is fully implemented in 2011, only 14.52 TMC are thus allowed. The decision to take into account one-third of Bangalore meant taking into account the needs of one-third of
the Bangaloreans, and disregarding completely with no discussion the factual
needs of the people living beyond this border. As far as the Tribunal was concerned, jurisdiction and interest alike seemed to have stopped at this.
231
232
Salman 2002, p. 233.

Anonymous 2007e.
95
In terms of the consumptive use and allocation of water to the States, it must be
seen as a grave misconception to calculate with an 80 percent return flow from a
share, and to overlook issues of time lag, quality deterioration, possible losses from
groundwater recharge and abstraction from wells, evapotranspiration, etc. An error
in the figures here means that the amount of water that Karnataka must release to
the parties downstream is not duly lessened by what has actually been abstracted
for domestic use by the States population.
5.5 Alternative ways of settling the dispute

Already in its 1990 judgment the Supreme Court took judicial notice of the fact
that the Government at the Centre was led by one political party while the respective Governments of Karnataka and Tamil Nadu were led by different parties.
However, the Court notes, there was a time after the dispute arose when one and
the same political party was in power and perhaps if the Centre had intervened effectively then, there would have been a considerable chance of settlement by negotiation.233 As of now, the political will is weak as there are too many vested interests
to ponder.
Meanwhile, efforts have long been made to find an arena for multi-stakeholder
dialogues for one of the sectors involved, the farmers. The Cauvery Family was
formed in 1992 by an academician of the Madras Institute of Development Studies
(MIDS) and a Professor of the same institute still convenes and facilitates the
group. It has provided a platform to farmers of Karnataka and Tamil Nadu to exchange views and feelings, rid the issue of the mistrust that has built up over generations and, not least, bridge the information and communication gaps stemming
from the confidentiality imposed by both States. Visits to each others regions have
been paid for better understanding of the problems and the potential for the farmers mutual welfare.234
Although the potential for non-governmental initiatives seems large at first
sight, it is also apparent that the sharing of a river is an extremely complex matter
and that far more aspects and angles need to be taken into account than has been
the case, at least by the Tribunal. The secretary of the Cauvery Delta Farmers Welfare Association in Tamil Nadu and a member of the Cauvery Family has asserted
that if Karnataka refuses to implement the Order, then everything depends on the
availability of water.235 A speaker on behalf of the Familys equivalent, the Karnataka Rajya Raitha Sangha, has, in turn, said that the Final Order of the Tribunal
would not be acceptable if it was seen to be unfair to Karnataka.236
A former World Bank representative with long experience of irrigation, reservoirs, and dams in the Kaveri area has noted that, in practice, the river has been
managed over the phone by the Chief Minister of Tamil Nadu begging the Chief
233
Tamil Nadu Cauvery Neerppasanavilaiporulgal Vivasayigal Nal v. Union of India & Others.
Subramanian; Anonymous 2006c; Janakarajan (undated).
235
Subramanian.
236
P. Menon 2003.
234
96
Minister of Karnataka to release water during periods of drought.237 This is of

course highly incompatible with the rule of law in terms of predictability, transparency, equality of rights, etc. Nor is it a solution that takes account of an integrated,
holistic or sustainable approach, or appreciates that the Kaveri is the lifeline of
many millions of people. Yet, it is extraordinarily important to take into account all
the diverse and contrasting needs of water users, and no issue can be left to politicians nor to researchers or judges alone.
The Kaveri dispute will be analysed again in Chapter X. The next sub-section
will deal with urbanisation and how the city has grown to become Greater Bangalore. The question is what, from a water access point of view, happens when formerly rural areas are administratively incorporated with urban?
6 (Peri-)urbanisation and Greater Bangalore

6.1 Understanding the processes
As outlined above, the city of Bangalore now comprises a core area the former
Corporation (BMP) and eight municipalities and 110 villages that surround it.
The administrative decision to join all these units and bodies into one jurisdiction
was taken as a result of the urbanisation and peri-urbanisation which the larger area
had undergone during some fifteen years. Although urban growth in India has been
slow compared with that in many developing and newly-industrialised countries, it
is generally expected to speed up, especially in certain agglomerations. The urban
dwellers accounted for almost 28 percent of the total population in 2001, expected
to increase to just over 33 percent by 2026.238 By another projection, India will have
almost half of its population in urban areas in 2030 meaning that every eighth
person in the urban world (12.39 percent) will be living in India.239
Structured planning of a citys enlarged layout, including the possibility of progressively developing infrastructure and gradually improving the capacity to manage
water supply, sewerage systems and like services are clearly the keys to managing
the outcomes of continuous urbanisation. This task is all the more demanding
where urban centres grow very fast, as Mexico City, So Paulo, Buenos Aires,
Dhaka, and Jakarta have shown. These cities witnessed explosive growth after 1960
between 1950 and 1975 the population of Mexico City grew more than four
times. A.K. Biswas has described how in the Latin American mega-cites, the overwhelming demands and pressure from the great increase in population became
quite unmanageable and the overall quality of life declined rapidly as a result. This
had much to do with the poor economic performance of the countries in question,
coupled with high public debts, underdeveloped governance structures, inefficient
237
Personal communication, former World Bank officer. March 16, 2007.

Census India 2006, Figure 12. However, the State-wise proportion of population expected to
live in urban areas by 2026 is 98 percent in Delhi and only 11 percent in Bihar. In Karnataka, it is
projected to rise to 42 percent.
239
Raju, Praveen & Anand, p. 4.
238
97
systems for resource allocation, lack of proper planning, and the pervasive corruption that distorts the distribution of finance, etc.240
In comparison, populations in cities such as London and New York grew over a
long period, starting in the ninteenth century. As the mega-cities of the industrialised countries slowly expanded, their economies grew alongside. This supplied the
economic ability to harness the financial and human resources necessary to cope
with water-related services.241 The longer time scale should also have allowed the
early-industrialised countries to develop technical know-how and build up capacity
as demand grew.
In the discussion of water supply and sanitation services, the mega-cities of the
developing world (defined as having more than 10 million inhabitants) have attracted most attention. Nevertheless, it is in the medium-sized to small urban centres where the majority of the developing worlds population live and where, according to UN predictions, the growth rate will be largest.242 Thus places like Bangalore are likely to attract a continued influx of people, increasing the pressure for
solutions to infrastructural problems.
In theory, increasing urbanisation results in greater competition between the urban areas and the rural. Where the latter supply the natural resources imported to
the cities in raw or transformed form the former produce goods and services with
a higher GDP value. But the city also delivers sewage, waste, and pollution in high
concentrations most of which is again transported to the hinterland. Freshwater
is one of the resources increasingly required, taken from increasingly larger distances. Dependence on the supplying surroundings is almost total in cases such as
Bangalore. In addition to water for drinking and other domestic needs, there is a
large import of virtual water in food and other products.243 All in all, the requirements are growing and becoming more complex.
However, where is the line to be drawn between the urban, water-short city and
the supplying rural hinterland? It is clear, not least from the map of Bangalore, that
the rural and the urban cannot be viewed and treated as two distinct geographical
entities. Although there are definitions244 of what makes a settlement urban such
as population density, size, socio-political and economic importance, land use, infrastructure and governmental organisation these features seldom characterise the
entire area referred to as a city. Instead, we find that the nature of the city lies in the
understanding of it as an accumulation of human dwellings, administrative func240
A.K. Biswas, p. 189, adding that many of these cities have been able to handle the provision of
water supply to some extent, whereas the sewage and waste water treatment facilities are still
sadly neglected.
241
Ibid, pp. 188f.
242
Ibid, pp. 185, 188; UN Population Division 2002.
243
The concept of virtual water, as invented by Tony Allan, refers to water embedded in food or
other products from their production. Sometimes called water footprint.
244
These definitions vary greatly between countries. If e.g. India and China were to recognise all
human settlements of a certain size as being urban in their statistics in other words, change
their definitions a substantial part of their populations would also be characterised as urban.
98
tions, legal jurisdiction, industries, etc., in a certain geographic area, and hence in
relation to its surroundings.
As one moves away from the core or centre of a city one often sees how heterogeneous its formation is. The city expands and disperses both geographically
and in our picture of it. Many contemporary scholars and policy-makers are therefore applying a wider and more integrated comprehension concept of urbanisation
and change as processes, stressing that the artificial distinction between urban and rural is inadequate and misinforming.245
The concept of the peri-urban interface is all the more important,246 not least to
see how [f]lows of people, goods and wastes, and the related flows of information
and money, act as linkages across space between cities and countryside.247 This
peri-urban area is comparable with what was earlier defined as the rural-urban
fringe.248 Since the 1980s, more and more empirical studies have been connecting the
cities with the countryside.249 For instance, most Asian countries have cities which
are expanding fast, but remain surrounded by a populous rural area with productive
agricultural land.250 Field research has also shown that settlement patterns in Asia
differ from what is traditionally perceived. They show growth of rural areas close to
cities and along highway corridors; a combination of productive but mainly smallholder agriculture with non-agricultural occupations; and highly spatial interaction
of economic activity. Within the areas closest to the city itself, this trend is often
enhanced by the possibility of daily commuting to work.251
Urbanisation is, per definition, the increase in the proportion of people living in
towns and cities, and is thereby often seen as de-population of rural areas. It is,
however, not only a result of natural population growth (i.e., births minus deaths)
coupled with migration of people into the city: it also involves processes by which
the city boundaries expand outwards. In Bangalore, a large part of the population
increase can be attributed to the repeated addition of new areas to the urban agglomeration.252
Before exploring some relevant aspects of the growing Bangalore, we need to
understand how the administrative powers are divided between the federal Centre
and the States and between the rural and the urban; and how this in turn affects the
decision-making and governance of water supply.
245
Cf. Pinto.
Allen 2003.
247
Tacoli 1998, p. 160.
248
Bentinck, p. 19.
249
Cf. Tacolis literature study from 1998.
250
McGee, 1987, 1991.
251
Bentinck, p. 19.
252
Cf. JNNURM; Centre for Policy Research, quoted by KUIDFC, p. 3.
246
99
6.2 Division of administrative powers

6.2.1 Constitutional provisions
The Indian federal government system is a three-tier structure, dividing legislative
and administrative power and institutional responsibilities between the Centre (the
federal Union), the States (and Union Territories), and the local level. Each State
has its own system of further subdividing the administration and here, only the
situation in Karnataka will be described.
This division of legislative, etc., power between the Union and the State Governments is regulated in the Constitution (Art 246). Different subject areas of legislation are enumerated in three lists in the Seventh Schedule under the Constitution.
The matters listed are also discussed in terms of functions of the States. The Union
List refers to the inter-State rivers; mineral development, etc. The State List includes
local government/urban planning; public health and sanitation; land; and water (defined as water supply for domestic, industrial and commercial purposes, Twelfth
Schedule to the Constitution). The Concurrent List enumerates subjects over which
the jurisdiction is shared between the Union and the States.
The Indian Parliament has exclusive, residuary powers to make any law with respect to matters not enumerated in the State or Concurrent list (Art 248).253 Since
there is no entry relating to Environment, laws on control of pollution have been
enacted under these residuary powers. In addition, the UN Conference on the
Human Environment in Stockholm, 1972, made an imprint on the Indian Constitution (Forty-Second Amendment Act, Art 253). More legislatory powers were
consequently conferred on the Union Parliament, enabling it to make laws to implement Indias international obligations (formulated as any treaty, agreement or
convention as well as any decision made at any international conference, association or other body). Parliament has used its extraordinary powers to enact the federal Air (Prevention and Control of Pollution) Act, 1981, and the Environment
(Protection) Act, 1986.254 The Environment Act regulates the control of effluent
discharges from economic activities (industries, handling of hazardous substances,
and the like), with some effects also on water.
The three-tier system is a way of furthering decentralisation from the Union
level, via the State Governments to the local. The Constitution provides for a dif253
The division of power between the federal level and the component States in India is based on
the principle that powers not explicitly granted to the provincial governments are retained by the
federal government (which is the opposite of what applies in the federation of the U.S.A. and in
Australia).
254
The legal basis for Parliaments decisions was Art 253 read with Entry 13 of the Union List.
The Preambles to both the Acts refer to the decisions taken at the Stockholm Conference. The
formulations in the Environment Act in turn enabled the Ministry of Environment and Forests
to decide on the binding Coastal Regulation Zone Notification, 1991, in spite of there not being
any corresponding international obligation to implement, and though water is clearly a State
subject. The Water (Prevention and Control of Pollution) Act, 1974, was enacted by Parliament
pursuant to consent resolutions passed by 12 State Legislatures.
100
ference between the rural and the urban, which can be described as village Panchayats and municipalities, respectively. Both may by law be endowed with such powers and authorities as may be necessary to enable them to function as institutions of
self-government (Art 243G and 243W, and the Eleventh and Twelfth Schedule,
respectively). Some more details are given below.
The State Legislatures exclusive power to make laws with respect to the various
functions on the State List naturally also confers responsibilities. In other words,
the legislative competence is coupled with duties and obligations to perform on the
listed subjects. The Constitution (Art 243W) is nevertheless formulated in a manner
which ultimately allows each State Government to decide whether, and how far, it
wants to further decentralise these functions to the municipalities and Panchayats by
devolving power to them. It seems that, in practice, responsibility in areas such as
water supply is handed down but the formal delegation and, more importantly, the
funding does not always follow. For environmental issues, the Supreme Court has
laid down that government agencies may not plead non-availability of funds, inadequacy of staff, or other insufficiencies to justify the non-performance of their legal
obligations.255 This should make the competent authorities hard-pressed in terms of
accountability; all the same, they commonly refer to their lack of sufficient means.
Local government on the State-list is to be read as the constitution and powers of municipal corporations, district boards, and other local authorities for the
purpose of local self-government or village administration (Entry 5, List II of the
Seventh Schedule under the Constitution). This provision was supplemented with
new ones, inserted under the Constitution (73rd and 74th Amendments) Act, 1992.
Some States also have an important intermediate level, in Karnataka known as
Taluks (or Taluka, sometimes referred to as block), which functions as an administrative unit above city or town but subordinate to district level. Under the Taluk
level come wards, functioning as constituencies. A number of seats are allotted in
each, with seats reserved for representatives of the dalits, Scheduled Tribes, and
other backward (low-caste) communities in relation to their proportion of the
population of the ward.256 One-third of the seats are reserved for women. The term
of office is five years, and positions as President (Chairperson) and secretary are rotated each term as a means of affirmative action.
The provisions on direct elections and reservations of seats to the decisionmaking bodies apply also in the municipalities and villages.
6.2.2 Municipalities: towns and cities
Urban areas can have either the status of city municipalities or city corporations. 257
The population, density of population, revenue generation, rate of employment in
255
Dr. B.L. Wadehra v. Union of India (Delhi Garbage Case) AIR 1996 SC 2969, p. 2976.
It should be noted that Muslims, Christians, and people belonging to other religions are not
part of the reservation system. This is only one of the many flaws it inherits.
257
There are two more classifications; Town Panchayats (TPs), with a population of 10,00020,000, and Town Municipalities, with 20,000-50,000 inhabitants. A City Municipality has 50,000256
101
non-agricultural activities, economic importance, and other factors, determine

whether a town or city is to be defined as a smaller or larger urban area. Geographical re-classifications are common, the Bangalore Corporation and its adjacent
municipalities being one such case. Urban areas are run by Urban Local Bodies
(ULBs), consisting in turn of many administrative hierarchies.
Since January 2007, the Corporation of Greater Bangalore is called Bruhat Bangalore Mahanagara Palike (BBMP), instead of the former Bangalore Mahanagara Palike
(BMP). A Corporation is run by a Council comprising elected representatives (corporators), one from each ward. Bangalore was previously divided into 100 wards
but the number is now raised to 150.258
The term of the last Council ended on November 23, 2006 and elections were
yet to be held one and a half year later. The state of flux without proper leadership
is explained as due to delays with delimitation of wards and finalising voter lists. In
the absence of an elected body, the Corporation was run by an Administrator and a
Commissioner, appointed by the State Government.259 In February 2008, the second civic budget in a row had to be decided on in the absence of a Corporation
council. The budget did not even have participation of the peoples representatives,
contrary from what is prescribed in the Karnataka Municipal Act, 1964. Since
October 2007, there were no Ministers of the Karnataka Legislative State Assembly, either, as the Government had resigned and the State was ruled by Presidents
order from New Delhi.260 In May 2008, elections to the Assembly were held.261
Apart from the Karnataka Municipalities Act, the Karnataka Municipal Corporations Act 1976, apply. The latter is more detailed in its provisions. Both the Municipalities Act and the Corporations Act were amended in 1994 as a result of the
74th Amendment to the Constitution. As a result, the ULBs were reconstituted.
Hence, it is now expressed as an obligation of the respective bodies to exercise certain powers and perform various functions (Sec 87, the Municipalities Act; Sec 5758, the Corporations Act).
To carry out their responsibilities, the municipalities have been empowered to
levy certain taxes and fees. The ULBs main sources of income are taxes on buildings and land, user charges for water supply (water cess), and licence fees for regulating the building construction and fees from other trade licences. The State Government furthermore transfers a portion of its general revenues. In addition, the
300,000).
258
The Corporation Act has been amended by the Legislative Assembly from May, 2007, as the
number of councillors in a corporation could not exceed 100, Sec 7(1)(a). By the Karnataka Act
No. 14 of 2007, the words one hundred fifty were substituted for the word hundred in the
Karnataka Municipal Corporations Act, 1976 (Sec 7(1)(a)).
259
The safest way to obtain updated information on Bangalores civic and administrative situation
is to consult Wikipedia web pages BBMP, Bangalore. The home pages of the responsible authorities seem to be updated once in a couple of years.
260
Itnal.
261
The future of Bangalore and Karnatakas leadership was determined after the publication of
this study.
102
municipalities can raise loans from the Central and/or State Governments and financial institutions to meet expenditure under capital heads of accounts.262
6.2.3 Village Panchayats: local self-governance
The Panchayati Raj Institution (here: Panchayats) was traditionally an assembly of the
five elders of the village community: nowadays the term refers to an elected council
having Government power decentralised to it. Since the 73rd Amendment to the
Constitution was enacted in 1992, the State Legislatures have been able to bestow
on the Panchayats such powers and authority as may be necessary to enable them
to function as institutions of self-government (Art 243G). The Constitution further provides for devolution of powers and responsibilities to the Panchayats for
preparation and implementation of economic plans, etc. in relation to twenty-nine
subjects listed in its Eleventh Schedule. Each State has its own, more detailed legislation for devolution of power, authority and responsibilities for the rule of the rural areas. The Karnataka Panchayati Raj Act, 1993, provides in Sec 58(1) that the
Grama Panchayat is vested with the power to perform certain functions, including
preparing annual plans for the development of the Panchayat area, and receives an
annual budget.
The Panchayat system of governance in India has Grama Panchayats as the basic
unit of administration, consisting of one, but mostly several, revenue villages. Villages can also be grouped into a cluster, a hobli. In most States, such as in Karnataka, there are two levels above the Grama Panchayats: the Taluk and district (Zilla)
Panchayat. To a certain extent, the Grama Panchayats answer to the Taluk and Zilla
levels of government.
Meetings in the form of ward Sabha and Grama Sabha must be held regularly (at
least every six months) and comprise a certain minimum of those living in each
ward and village, respectively. These meetings have no decision-making power but
forward recommendations, and function as arenas for discussion with the elected
members of the Grama Panchayat. The Sabha meetings are required to be open for
everyone but in reality, villages are often overtly divided along gender, age, caste,
community, educational and political party lines, resulting in groups being left out
by not being properly informed and invited, or listened to. This reflects the strong
traditional norms existing in essentially all villages, which often undermine the legislators (and, possibly, Mahatma Gandhis) intentions to provide for democratic selfrule. The problem is only partly linked to a low level of education, as India has an
oral tradition of information and knowledge transfer to illiterate persons. Rather,
ignorance of the rights and obligations conferred by the formal law, as well as deliberate exclusion of untouchables and/or of women, is the deeply entrenched
problem.
The same goes for the election of at least one-third women as Panchayat members, and of dalits and others in proportion to their number. Women tend to remain
262
Itnal; Karnataka Department of Municipal Administration, web page Municipal Administration.
103
puppets, as many of them cannot move around freely without having their husbands take them and sometimes speak for them as well. However, I also met
plenty of female Panchayat presidents who proved to be as outspoken, determined
and well-informed (and sometimes also corrupt) as anyone else. There are also concentrated efforts to raise the level of awareness through Central governmentsponsored schemes such as PRIA, which show very good results from training
elected members.263 Access to information is also spreading incredibly fast along
with education, electricity, TV-sets, mobile phones, motorcycles, and other means
of communication.264 Proximity to towns, and towns nearing themselves to villages,
are likely to result in progress also in terms of democratic governance: insights into
less traditional ways of living stretch the norms for ordering the community and
representing it in the council.
6.2.4 Water governance at local level
6.2.4.1 Division and planning of the subject water
The administration of water supply is likewise divided between the levels. The Central Government plays a role in water management, though this is limited to formulating policies, framing guidelines, monitoring the water resources and optionally
financing some projects. To cater for the national perspective, the Centre takes a
co-ordinating role on certain issues. For instance, the Union Ministry of Urban Development formulates the policies and strategies pertaining to various aspects of
Indias urban development, including water supply, sanitation, and municipal solidwaste management.265 The Centre also acts to attract foreign investment and loans
from, e.g. the Asian Development Bank and the World Bank, as well as development aid, not least with the aim of building infrastructure in the water sector. As
described above, the Centre also sets up Tribunals for inter-State river disputes.
Concerning groundwater, a Model Bill has been drafted by the Central Government (Ministry of Water Resources) as a template for States to enact their own
legislation (cf. Chapter IX). Despite legislative action taken for air, the coastline, and
the environment in general, it is perceived as impossible for the Centre to legislate
on behalf of the States on this matter.
At State level, the subject water includes water supplies, irrigation and canals,
drainage and embankments, water storage and water power (Entry 17, List II,
Seventh Schedule of the Constitution). Each State is thus vested with the constitutional right to plan, implement, operate, and maintain water supply projects. The
main functions of the State Governments include development and management of
the water resources situated within their borders. This function is carried out
263
Personal communication, PRIA officer. March 4, 2005, December 8, 2006.

Access to the internet is likewise spreading rapidly among the rich and well-educated landowners in the villages.
265
The Central Public Health and Environmental Engineering Organisation acts as an Advisory
body at Central level and provides policies, strategies and guidelines on the implementation and
O&M of urban water supply.
264
104
through the local bodies, to whom a range of responsibilities devolves. It includes

water delivery, resource augmentation, purification and other treatment, operation
and maintenance of pipes, network and infrastructure, distribution to individual
households, and collection of water charges.
In terms of planning, there must be Planning Committee at District level, consolidating the economic, etc., plans prepared at Panchayat and municipality levels,
and to draft development plans for the district as a whole. These plans must take
into account matters of common interest spatial planning, sharing of water and
other physical and natural resources, the integrated development of infrastructure,
and environmental conservation. The District development plans are finally decided by the State Government (Constitution, Art 243ZD).
6.2.4.2 Karnataka and Bangalore
In Karnataka, the Municipal Corporations Act provides for Planning Committees
in the State. In addition, under the Karnataka Town and Country Planning Act,
1961 the Bangalore Development Authority (BDA) is the body responsible for the
city of Bangalore. Its large jurisdiction (the Bangalore Metropolitan area) comprises
some 550 villages around the city.266 As well as Bangalores Urban District Planning
Committee, the city as a Metropolitan area has a special Planning Committee. This
is obliged to draft its own Development Plan for the area as a whole, and must observe the same considerations as to water sharing etc., as at district level. It must
also consider the plans of the Panchayats and municipalities within the Metropolitan
area (Constitution, Art 243ZE). For this purpose, the Bangalore Metropolitan Region Development Authority Act has been enacted. It envisages a jurisdiction similar to that of the BDA.267 The Bangalore Metropolitan Region Development Authority (BMRDA) co-ordinates with, among other bodies, the Bangalore Water
Board and is empowered to give it directions.
This administrative structure is indeed complex. The picture of overlapping
functions, mandates, and geographical jurisdictions is supplemented by yet others,
and the number of authorities involved are possibly explained by the sheer number
of employment opportunities it creates.
The management of water supply etc. in the State has been regulated in more
detail by law. The Karnataka Municipalities Act contains a provision laying down
its obligatory functions, including
obtaining supply of or an additional supply of water proper and sufficient for preventing danger to the health of the inhabitants from the insufficiency or unwholesomeness of the existing supply, when such supply or additional supply can be
obtained at a reasonable cost (Sec 87(j)) (emphasis added).
266
BDA web page BDA Jurisdiction. Over 50 of these villages are located in the Bangalore Rural District.
267
BMRDA web pages Bangalore Metropolitan Region, Statement showing the number of
ULBs.
105
The Karnataka Urban Water Supply and Drainage Board, regulated by an Act from
1973, is the body responsible for providing water and underground drainage to the
220-odd urban areas throughout the State. This authoritys jurisdiction does not,
however, cover the City of Bangalore, which instead comes under a specific scheme
(the Bangalore Water Board).
In terms of water management in the rural areas, the Karnataka Panchayati Raj
Act stipulates that providing adequate water supply is a subject-matter for which
responsibility devolves from the State:
Power for providing adequate water supply.- (1) For providing the area under
its control or any part thereof with a supply of water pure and sufficient for public
and private purposes, the Grama Panchayat may,(a) construct, repair and maintain tanks or wells and clear streams or water
courses;
(b) purchase or acquire by gift or otherwise any tank, well, stream or water
course, or any right to take or convey water within or without the area under its
control;
(c) with the consent of the owner thereof utilise, cleanse or repair any tank, well,
stream or water course or provide facilities for obtaining water therefrom;
(d) contract with any person for supply of water, or
(e) do any other act for carrying out the purposes of this section.
(2) The Grama Panchayat may, by order published at such place as it may think
fit, set apart for the supply of water to the public for drinking or culinary purposes, any tank, well, stream or water course in respect of which action has been
taken under clause (a) or (b) or (c) of sub-section (1) (Sec 77) (emphasis added).
Both ward meetings and Grama Sabha meetings are empowered to decide on such
things as the location of wells. Groundwater as a natural resource, being the sole
source of drinking water in most villages, is however not a responsibility laid on the
Grama Panchayats. In the Karnataka Panchayat Raj Act, the functions water management and watershed development as listed in the Constitution (Entry 3,
Eleventh Schedule) and interpreted as watershed development programmes and
development of groundwater resources are instead to be implemented at Taluk
level (Sec 145 together with Schedule II of the Panchayat Raj Act). It is furthermore
a matter for the Zilla Panchayats to take reasonable steps and only in so far as the
funds at its disposal allow to construct rainwater harvesting structures to recharge
the aquifers, and to prevent the drilling of irrigation bore wells in the vicinity of
drinking-water wells (Sec 184).
The provisions in the Constitution and the Karnataka Panchayat Raj Act are very
briefly formulated in laying down general powers, mandates and more concise responsibilities. Being vague and abstract means, for instance, that uncertainties are
bound to prevail as to how far-reaching the village Panchayats mandate is, or what
role its president is expected to play in water-related matters.
106
6.3 Growing Bangalore

6.3.1 A city that beckons
When Bangalore expanded in early 2007, a need for an even working field
throughout the city was perceived. It was not the first time administrative decisions
had been implemented to enlarge the city. In 1995, the former municipalities were
created out of villages, and new ward areas were delimited.268
In terms of population, Bangalores growth has been quite extraordinary. In
1961 the city was the sixth largest in India, with 1.2 million inhabitants. It is now
the fourth largest. Between 1971 and 1981, Bangalores growth rate was 76 percent
the fastest in Asia.269 Between 1991 and 2001, the urban part of Bangalore District
witnessed the countrys fastest growth after New Delhi, with almost 38 percent.
This is in comparison to an average of 17 percent growth in the entire Karnataka,
and 21.34 percent in India as a whole during the decade. The 2001 census put the
population of Bangalore city at 4.3 million inhabitants and of the urban agglomeration as 5.7 million.270 Estimations in early 2008 indicated a population in the Metropolitan area of approximately 5.2 million inhabitants whereas Greater Bangalore
comprised some 6.8 million.271 The figure thus depends on what administrative
borders are reckoned with, but also who you ask. The question of population is not
easily answered when it comes to Bangalore.
Bangalore has been described in many ways over the centuries: as the garden
city, pensioners paradise, pub capital, Indias Silicon Valley, and so on. Each name
bears its history and its non-disputed grain of truth but most of all, they serve as
representations of what geographical space can mean to its inhabitants and to people looking at a place from outside. Besides, the names depict the changes Bangalore has undergone over time some of which have come with rapid growth and
have led to important transformations of the city.
Bangalore has three plain pull factors. Pensioners used to settle in Bangalore because of the peaceful and green environment, and young and well-educated people
have more recently been beckoned by jobs in the IT and call-centre businesses
(known by companies in Europe and the U.S.A. as Business Process Outsourcing).272 There has been a construction boom since the 1970s, but the rapid economic growth has nevertheless resulted in an upsurge of residential and office
268
Anonymous, 2006d.
Vagale, p. 35.
270
The population of a city is confined to the statutory limits of respective Municipal Corporations only, and populations of the outgrowths appended to these cities are not included. An urban
agglomeration is defined as a continuous urban spread constituting a statutory town or city and the
adjoining urban outgrowths that are situated within the revenue limits of village/s contiguous to
the city.
271
The lower figure comes from the World Gazetteer India: largest cities and towns, the
higher from the Bangalore Corporations web page Bengaluru City Profile.
272
The pull is felt as far as the U.S.A. and the U.K. from where tens of thousands Indian technology professionals have arrived back to Bangalore to take up work.
269
107
buildings and shopping malls, and infrastructure such as numerous roads, a new
airport, a metro system, new water pipes, etc., that in turn draw both skilled and
un-skilled workers.
However, there is also a distinct external feature of the wider surrounding region that functions to push migrants towards and into Bangalore both from the villages surrounding the city and from most of the neighbouring States. This is because of the huge distress in the agricultural sector, due in turn to a range of factors. The most marked ones are industrialisation and the increased use of machinery, the globalised market, altered food preferences, better education which turns
the younger generation from working in the fields.273 More and more landowning
farmers plant eucalyptus or other mono-culture crops that need little attention, and
settle with their families in the city. Compounding these factors is the decreasing
access to water as the groundwater tables are lowered. Being drought-prone, the
majority of agriculture in the area around Bangalore is rain-fed and not irrigated by
reservoirs and canals. It is yet too early to draw clear conclusions about climate
change effects on precipitation patterns. It seems, though, as if many already leave
the rural areas as a consequence of the environmental stress on cultivable land.
It has been estimated that in 2003-04, four farmers a week committed suicide in
Karnataka alone.274 The reasons were the same as those distressing agriculture as
such. In addition, crop failure, falling agricultural commodity prices, low crop insurance, and severe indebtedness have been pointed out by the media. The widows
of farmers who have committed suicide often have to take over the debts and are
left to deal with moneylenders. Against this backdrop, migration becomes a necessity for them in their battle for survival.275
As well as the farm-owners and the agricultural labourers,276 people who do not
earn their living directly from farming are affected. This is especially true of the uneducated, a group consisting mostly of dalits and members of other backward
classes (OBCs). Many women furthermore depend on employment as domestic
servants in landowning and other middle-class households. As the potential for a
non-farm economy in villages can be very low, few alternative ways of earning out
a living are present. Together, harsher conditions and requirements for economic
adjustments of the agricultural sector are driving people from the rural areas to
Bangalore.
Although many migrants probably once intended to return, they are increasingly
settling in the city where many needs can more easily be met than in the villages.
273
Dubash writes in his Tubewell Capitalism that groundwater development has led to extensive
agrarian change in large parts of India.
274
Figures for later years have not been found but there is regular and intensive media coverage
on the issue, indicating that the numbers are not declining.
275
A. Davis, pp. 6f. and personal communication, multiple occasions.
276
Landless agricultural labourers work on wage basis or crop share basis, whereas so-called
bonded labourers are bound to landowners/farmers due to loans, etc. Alternative Law Forum,
pp. 95f.
108
Rather than going back to an insecure income, many people turn their temporary
shelters into more permanent homes.
Empirical research into the conditions of people who have moved to Bangalore
shows that many migrants stay in the city for eight months of the year and go back
to their villages during the monsoon season to tend to the (dry-land) farming. What
the family earns from work at the numerous construction sites helps towards debt
repayments and for small investments in farming for the coming season. Many live
on the pavement, others stay on vacant privately-owned plots and pay Rs.150-200
per month to the landlord. It is common for the family to make a small hut out of
waste plastic sheets, coconut leaves and other material.277
6.3.2 Planned suburbs, unplanned sprawl
Bangalore shows some ordinary signs of the development of growing cities, but
also veritable stages of transition. The area that Bangalore covers has grown tenfold
over the past century, from 75 km2 in 1901, to over 740 km2 in January 2007.278
From a map, the city comes across as rather unstructured but history shows how
residential areas were planned and sketched out already by the colonial rulers, for
instance with regard to drainage. The city was extended by several suburbs, or layouts, at the end of the 1800s.279 Some were inspired by colonial zoning regulations,
according to the gridiron or chess plan, and some were built at relatively elevated
sites which facilitated good drainage in times of plague. There was an urgent need
for sanitation amenities and water conservation, as recounted above. Both the old
part of the city and the Cantonment area had piped water, but the supply was not
very secure, as also indicated.
By the 1930s the suburbs had sprawled out and people who could afford to
commute by carriage lived outside the city. After Independence, Bangalore grew
rapidly in all directions, though with particularly intensive pressure on the inner
city. In 1956, Mysore State was reorganised, with Bangalore as State capital, resulting in a major influx of migrants and further extension of the city. The old city and
the Cantonment were merged into one entity and grew rapidly.280
In 1986, Bangalore was split into two districts, one Urban and one Rural.281 The
Urban district was in turn divided into three Taluk areas: Bangalore North, Bangalore South, and Anekal, with Bangalore East carved out of the South in 2001.
Back in the 1970s, two well-known features of Bangalore emerged as a consequence of the rapid growth: infrastructure-related problems intensified and land
prices started to rise. Developers bought land, and multi-storied as well as com277
Alternative Law Forum, p. 87; A. Davis, pp. 6f.

In 1991, the Bangalore City Corporation was 200 km2 in area and at the end of the decade, it
measured 449 km2. Nair; Anonymous 2006d.
279
Chamrajpet, Sheshadripuram, Malleswaram and Basavangudi.
280
Vagale, p. 37.
281
The Rural district physically almost surrounds the Urban district except in the south-east. Another district; Chikballapur, was carved out of parts of Bangalore Rural during 2007.
278
109
mercial buildings began to replace the bungalows. In 1989, the citys open space
was four times the built-up area but by 1980, the proportions had reversed. The
idea of satellite townships developed when the core city had reached saturation.282
In 1996, the Urban district was therefore divided into nine municipalities, including
the Bangalore Corporation and 668 villages.
Large parts of the municipalities surrounding the Bangalore Corporation were
of rural character, where conversion of farmland for other purposes was prohibited. The area also housed residential estates, some of which were gated communities. In addition, the municipalities were the locations of several hundreds of smalland large-scale companies and industries including the over-100 IT and software
companies in the important Electronics City which has given Bangalore its nickname Indias Silicon Valley.
According to the 2001 census, the population of the municipalities was 1.2 million, expected to rise to over 3 million by 2021 but substantial variations in the
predictions and population changes across the region were also assumed. The water
shortage and quality problems in these municipalities grew day by day with the continuous building of new residential areas and the establishment of companies and
factories. These areas were underserved in general, and the poorer social strata were
especially badly off. The sole source of water was the groundwater estimates have
shown that about 3,500 tubewells were maintained by the Urban Local Bodies; add
to these, thousands of individual tubewells.283
The municipal tubewells operated subject to power supply, pumping water to
storage in underground sumps and then to overhead tanks with the help of motors.
From these tanks it was distributed throughout the towns. No treatment was given
to the water except for the adding of bleaching powder before pumping the water
into the distribution system via underground pipes.284 Water was drawn from public
standposts and taps in the streets, and supplied to houses that were of pukka type
and connected via individual pipes. The water was typically supplied for some
hours every other day, or even less often. Households that could afford gas always
boiled water before it was consumed. In many areas, people complained that the
water was unfit for drinking as it was too contaminated, e.g. with salt.285
Groundwater was sometimes supplied via tankers, arranged for by the municipalities and/or by individual ward councillors, who had connections and contracts
282
Vagale, pp. 39f.

Suresh Babu, p. 38.
284
Personal communication, water supply officers, Yelahanka, November 29-30, 2006.
285
When the situation in Kolar city was investigated by Raju, Praveen & Anand, pp. 11f., it was
found that the duration of supply varied from 10 minutes to 24 hours depending on the ward
and individual political influence in the ward. Also the type of supply to each household depended on the category of people living in the ward, or in other words, their political influence.
Politics plays a major role in the water supply. The technicians and the engineers in the municipality have little role to play in the present scenario. The same applied in relation to the level of
supply supplies to the households of well-known persons in the society (i.e. lawyers, inspector,
etc.) were substantially higher, ibid.
283
110
with landowners and paid them (or middlemen) with money collected via revenue
taxes. In addition to these arrangements, many households drew water from their
own wells. It seems that most landowners preferred not to rely on the municipal
system but to be self-sufficient in the matter of water for domestic, etc., needs.
Many households without a (functioning) well and thus without access to groundwater contacted and paid directly to landowners or middlemen who delivered water
more or less regularly.
An important proportion of the water used for drinking and cooking was given
or sold per pot (of about 12-15 l). The price per pot reportedly ranged between
Rs.1 or 2, rising as high as Rs.5 during summer. In general, this water seems to
have been of better quality, possibly because it was not run in pipelines or tapped
from seldom-cleaned public standposts. For drinking purposes, many people chose
to pay for water which was bottled (and treated ozonised or disinfected by UV
radiation). There were reasons for concern in many places, though: over 60 percent
of the 600 tubewells had, for instance, dried up in five years in the (former) municipality of Desarahalli.286
Water requirements for businesses such as the many sprawling IT companies,
call-centres and factories that arose in the municipal areas were often met with
groundwater from deep tubewells, extensive rainwater harvesting schemes and increasingly also by commissioning the Water Board to deliver water via a network
laid exclusively for the company. The latter was the case for the IT companies having many thousands of employees. The Water Board also installed a dedicated pipeline to the new international airport in Devanahalli, some 40 km northwest of the
city.
6.4 Summing up
The phenomenon of urbanisation is rather complex in Bangalore, but it follows
some characteristic patterns for a city in a developing country as these patterns are
understood in the theories of peri-urbanisation processes.
Should there exist any general recipes for the management of growing cities,
these should include not allowing development to get out of hand, and introducing
flexible regulations to cater for the uncontrollable. This would include a mix of
autonomy and integration in the competent authorities. More fundamentally,
though: when facing urban sprawl and deciding to incorporate adjacent areas into
the city by moving its boundary, this should preferably be done in a transparent, yet
determined, manner so that inhabitants and bureaucrats alike know the altered circumstances and the new rules, if any. Surely, Bangalore became Greater Bangalore
with the best of intentions but the change left much to be desired.
In Chapter VIII, we will return to the question of Bangalores expansion and
examine a project to provide Kaveri water to inhabitants of the former municipalities. Now, however, this first part is rounded off by looking at conditions of pov286
Suresh Babu, p. 39.
111
erty, in India in general and in Bangalore, because access to water is largely a function of poverty.
7 Poverty and access

7.1 Defining poverty
One of the UNs Millennium Development Goals is to halve the proportion of
people living on a daily income of less than US$1 per capita (computed as purchasing power parity, PPP). This measure of absolute or extreme poverty is based on a
global poverty line and attempts to hold its real value constant across countries and
over time. The one dollar-a-day standard, measured in 1985 prices and adjusted to
local currency, was initially chosen for the World Banks World Development Report 1990: Poverty, because it was perceived as typical of the poverty lines in lowincome countries.287 India was not included, though, as its mode of calculation is
different (cf. below). In 1993 PPP prices, the absolute poverty line was US$1.08 a
day, or US$32.74 per month.288 This was, however, a deliberately conservative
definition.289
In India there is a very obvious difference between the upper and the lower
quartile of the population. According to the latest available figures, released in 2007
and calculated for 2004-2005, the share of poor in India is around one quarter of
the total population, or about 300 million people today.290 In contrast to the onedollar-a-day monetary baseline, the countrys poverty line (known as BPL) is derived from household consumer expenditure data collected by the National Sample
Survey Organisation every fifth year.291 The BPL is then set by the Planning Commission, which updates the baseline figures from 1973/74 to reach the amount of
money required for a daily consumption of 2,400 calories of food in rural areas,
and 2,100 calories in urban.292 These calorie norms are similar over the whole of In287
Cf. Chen & Ravallion 2004; Chen & Ravallion 2007; the UN Statistics Division, web pages
MDG Indicators/Population below $1 (PPP) per day (with method of computation); the World
Bank web page PovCalNet.
288
Chen & Ravallion 2004, p. 147, with references to and analyses of older calculations. The 1993
exchange rates for consumption are used to convert international rural poverty lines to local currencies, Chen & Ravallion 2007, p. 6. In 1993, US$ 1 was Rs.7.
289
Chen & Ravallion 2007, p. 6. To gauge sensitivity, a line set at twice this value (US$65.48 per
person and month) has also been used, commonly referred to as the two-dollar-a-day line. This
higher line is more representative of what poverty means in middle-income developing countries,
ibid.
290
Planning Commission 2007a.
291
The last one was published in December, 2006, cf. the National Sample Survey Organisation.
This is also known as the poverty census.
292
Rs.49 and Rs.57 per person and month as rural and urban poverty lines respectively at 1973
prices. As P. Sen, p. 4611, writes, [t]he Indian poverty lines are based explicitly on estimates of
the normative nutritional requirement of the average person in the rural and urban areas of the
country separately (emphasis added).
112
dia, for women, men, and children, and regardless of all individual or other conditions.
In other words, the official definition of poverty is based on a norm of purchasing power of food items only.293 The price index used to calculate the level of expenditure corresponding to the respective calorie intake is regularly updated and
since the 1990s, it has been State-specific. The urban food basket of 2,100 calories
in the State of Karnataka, and thus in Bangalore, is calculated to cost Rs.599.66 per
capita and month. The rural poverty line is Rs.324.17, indicating a large disparity
depending on geographical location. The all-India poverty lines are set at Rs.356.30
for rural dwellers and Rs.538.60 for the urban dwellers.294
Rs.599.66 monthly converts to US$15,295 which is about half-a-dollar a day. Only
with a monthly income below this threshold a person is registered as poor. This
means that if India had set the (absolute) poverty threshold at a PPP of US$1 daily,
or US$32.74 per month, the official number of poor people would be much
greater, and the picture of the countrys level of development would look different.296
What is more serious than the official statistics, though, is that Rs.599.66 (as in
Bangalore) does not cover expenses for shelter, clothing, hygiene, health care, education, kerosene (the cheapest fuel for food preparation) or other essential commodities. It further excludes the cost of freshwater for drinking, preparing food,
etc., where this water has to be purchased. This means that a person who can afford such commodities and food equivalent to the set standard of calories is not defined as poor. Conversely, it means that the 300-million-odd people defined as absolutely poor must consume less than 2,100/2,400 calories daily to afford other
goods, especially if safe drinking water must be paid for or make sure to buy
some staples at reduced prices somewhere.
Being officially declared as BPL-poor is therefore linked to buying essential
commodities under the Public Distribution System; wheat, rice, sugar and kerosene
oil are sold at subsidised prices via the State Governments in Fair Price Shops. 297
Various categories of ration card are issued for the purpose, based on income, geography and asset ownership, and entitle holders to differing quantities of these
commodities at set prices, depending also on whether the family lives in a rural, urban or Informal Rationing Area. Applicants need to submit documents to prove
293
P. Sen, who is affiliated with the Planning Commission, explains it differently: The procedure
employed was to calculate the average calorie intake of every expenditure class, identify the lowest expenditure class which consumed the calorie norm, and use the per capita total expenditure
of that class as the poverty line. Thus, the Indian poverty line captures not only the normative
calorie intake, but also the expenditure on all other goods and services that were deemed necessary by households themselves in 1972-73, ibid, p. 4611.
294
Planning Commission 2007a, Table 1.
295
Conversion as per mid-April, 2008.
296
Satterthwaite, 2007, comments how this kind of poverty line contributes to underestimations
of the global extent of urban poverty.
297
Wheat, rice and sugar only do, of course, not suffice from a nutritional point of view.
113
their residence voters ID-card, rent payment receipt or any other document related to residence. The public distribution of the mentioned commodities via Fair
Price Shops aims at contributing to affordable prices and enhancing food security,
and is part of Indias strategy for poverty eradication. It nevertheless excludes temporary migrants, pavement dwellers,298 squatters and others who cannot prove residency with a document.
A fair amount of corruption is built into the BPL system, because possession of
ration cards confers various benefits. Many corporators reportedly use the slum
dwellers in their ward as a vote bank by promising such things as improved water
facilities, and sometimes they actually employ their power and contacts to pressure
for, e.g., public standposts to be re-opened by the Bangalore Water Board.299 It is a
win-win situation: Ensuring a BPL tag for a family means winning more votes for
sure, as an unnamed minister is quoted as having said.300 Meanwhile, other politicians and responsible bureaucrats show a deep suspicion of ration-card applicants,
mirrored in what the Food and Civil Supplies Department in Karnataka states:
It is the endeavour of the Government of Karnataka to identify genuine BPL
families both in the rural areas and in urban slums (declared and undeclared) and
provide them food grains at subsidized prices under the Targeted Public Distribution System. Transparent procedure and specific economic criteria would form
the base for identification of genuine BPL families (emphasis added).301
India suffers from poverty as well as high unemployment. For some years a National Rural Employment Guarantee Scheme has operated to guarantee one ablebodied member of each family work at a wage of Rs.60 a day. However, even if this
person works on all 30 days of a month, he/she earns only Rs.1,800. For a family
of five, this amounts to Rs.360 per person, just above the national rural poverty
line. The guarantee is only for 100 days in a year, leaving the poor to fend for
themselves for the other 265 days.302 In Karnataka, this scheme is now supposed to
cover villages in eleven districts of the State. There is also a mid-day meal package
for all children who attend government schools, which has helped increasing not
only school enrolment but also actual attendance by 2-10 percent, at least in the official statistics.303
298
According to the Bangalore-based NGO Alternative Law Forum, p. 87, the term pavement
dweller is used generically to describe settlements where the possibility of a permanent tenure is
not possible under any circumstances. These are accessed by means of bribes to the local cops
and goons as well. It is almost a form of rent being paid to these owners/actors.
299
Personal communication, Water Board engineer. January 8, 2007. On public standposts, cf.
Chapter VIII.
300
R. Prakash.
301
Department of Food, Civil Supplies & Consumer Affairs, Government of Karnataka, web
page Implementation of Targeted Public Distribution System.
302
Guruswamy & Abraham.
303
All State Governments are directed to implement the scheme by providing every child in government and government-assisted primary schools up to the fifth standard with a cooked midday meal, with a minimum content of 300 calories and 8-12 g of protein each schoolday, for a
114
7.2 Slum conditions

Bangalores slum areas are scattered over the former Corporation and municipalities with three core zones in the inner part of the city, being the major commercial
and formal as well as informal employment centres. In a survey conducted in 1991,
the areas ranged in size from 0.1 acres (approx. 400 m2) to 20 acres (approx. 8 hectares), with 40 to 30,000 inhabitants, and in age from recent settlements to over100-year-old areas.304
Plenty of generalisations can be made regarding slums but, equally, many differences apply. Also, those living in a particular slum are far from being a homogeneous group or cohesive category. Groupings might use language, gender, age, caste,
religion, political affiliation, level of education and literacy, etc., as the social glue.
Hierarchies are as obvious in slums as in any other residential area or social community: the dalits tend to be regarded differently than OBCs (low-caste Hindus),
while both these groups might be involved in riots with Muslims and vice versa.
Language refers to the fact that many slum dwellers are migrants (or second- or
even third-generation descendants of migrants), predominantly from the States of
Tamil Nadu and Andhra Pradesh.305
For an expanding metropolis, Bangalore has relatively small slum areas, and they
are often held to be comparatively few in number. Most slums in Bangalore contain
fewer than a couple of thousand households.306 Illegal encroachments consisting
of one or just a few shelters, primarily put up by construction coolies, are common.
They can remain for years, expand, and be accepted (or rather ignored) by their adjacent neighbours, but without ever reaching the stage of formal recognition as a
slum. Eventually, if the cluster of shelters is on private land, the owner may initiate court proceedings to evacuate the families and have their dwellings demolished.
Water supply conditions differ greatly between any two slum areas, in terms of
whether there is access via one or several wells or taps (public standposts) within or
close to the slum, how much water these give; and whether the water is potable.
The range found in the present study was wide, as were the coping strategies
among the (foremost) women and the costs in time and money.
7.3 Legal and administrative approach to slums

It is important for planning and improvement works to know how many the urban
poor are in a city such as Bangalore. For several reasons, though, it is difficult to
count a slum population; even more so to estimate how many people are pavement-dwellers or live in temporary, isolated or scattered habitations.307 The official
minimum of 200 days per year. By comparison, a Big Mac contains about 25 g of protein. A
range of problems with the mid-day meal is regularly reported, though.
304
Ramachandran & Sastry.
305
Personal communication Halebypanahalli, Dr Ambedkar and ISRO Layout slums. January 30,
2007. Cf. Connors; Dewit; Ramachandran & Sastry; Schenk 2001 a, b; Schenk & Dewit.
306
Schenk 2001a, p. 46.
307
Schenk & Dewit, p. 121, also talk of spontaneous slums, mushrooming illegal settlements
115
statistics put the proportion of poor in the State of Karnataka at 32.6 percent of the
urban population and 20.8 percent of the rural (the all-India averages are 25.7 and
28.3 percent, respectively).308 According to the 2001 census, about 30 percent of
Bangalores population was regarded as urban poor, and the number of slum enumeration blocks was 733, housing 345,200 inhabitants. Official websites of various
responsible authorities give notoriously different figures and the unofficial numbers
are possibly even more inconsistent. One source states that 2.2 million people live
in slums in Bangalore,309 whereas the Karnataka Slum Clearance Board refers to the
473 slums recorded (204 of which declared, notified) in 1994.310
The observed variance is partly because the legal definition of a slum differs
from the ordinary understanding. The Karnataka Slum Areas (Improvement &
Clearance) Act, 1973 (hereunder: the Slum Areas Act) regulates that
[w]here the Government is satisfied, that,(a) any area is or is likely to be a source of danger to health, safety or convenience
of the public of that area or of its neighbourhood, by reason of the area being
low-lying, insanitary, squalid, over-crowded or otherwise; or
(b) the buildings in any area, used or intended to be used for human habitation
are,(i) in any respects, unfit for human habitation; or
(ii) by reason of dilapidation, over crowding, faulty arrangement and design of
such buildings, narrowness or faulty arrangement of streets, lack of ventilation,
light or sanitation facilities, or any combination of these factors, detrimental to
safety, health or morals, it may, by notification, declare such area to be a slum area
(sic, emphasis added) (Sec 3(1)).
These criteria for declaring a slum can be compared with two other definitions.
The first is used by UN-HABITAT, according to which a slum is
a contiguous settlement where the inhabitants are characterized as having inadequate housing and basic services. A slum is often not recognized and addressed by
the public authorities as an integral part of the city.311
The second is from the World Banks Glossary, in which a slum is

a heavily populated urban area characterized by substandard housing and
squalor.312
and non-tolerated encroachments.
308
Planning Commission 2007a.
309
Anonymous 2007h, referring to a non-located study by Supriya Roy Chowdhury of the Institute
of Socio-Economic Change in Bangalore. Considering that in Ramachandran & Sastrys detailed
study in 1990-1991 the slum population was approximately 1.12 million (about 20 percent of the
Bangalore Urban Agglomeration), this is not entirely unlikely. Ramachandran & Sastry, p. 52.
310
Karnataka Slum Clearance Board web page Constitution of the Board, according to which
the facts are from a survey of 1994. A few additional slums have been declared since, but the exact number is unknown.
311
UN-HABITAT 2003.
116
Though there are at least three different authorities involved in slum issues in Bangalore, the one with the main responsibility is the State Slum Clearance Board.313 It
is empowered to take decisions and action with regard to declared slums only. This
applies to, among other things, improvement works upgrading and betterment of
basic amenities such as drinking water, community washrooms, latrines, drains and
storm-water drains, street lights and roads (Sec 6-7, read together with Sec 2)
which explains why it can be favourable to live in an officially recognised slum. It
is, however, very difficult to interpret the provisions on improvements as rights or
entitlements enacted on behalf of slum-area residents.
In Genevive Connors study of Bangalore, the slum declaration is pinpointed as
being
extremely bureaucratic, rife with corruption, and completely disconnected from
both the needs of slum dwellers and the realities on the ground. It is also alarmingly ambiguous. On the one hand, declared status is coveted by slum dwellers
because declared slums are entitled to certain benefits, including potential land
rights. On the other hand, it is feared because certain grades of declaration can actually result in eviction as opposed to an improvement in security over tenure.314
The general approach to slum areas is, from what can be read out from the Slum
Areas Act, as lucid as the name of the Board suggests: clearance rather than improvement is the main objective. Slums are seen as a source of danger to public
health and sanitation and it is perceived as necessary to curb the tendency to put
up new slums. Prohibition of unauthorised construction of buildings is prescribed,
buildings that are unlawfully started should preferably be demolished and action
should be taken against middlemen who encourage unlawful construction.315 Even
slums of long standing are regularly demolished and shifted, mainly because land
value in the city is increasing so rapidly. The inhabitants are re-settled to unknown
and far-away places, often after a long period of insecurity and rumours. The slum
is often offered a choice of proposed new areas to which to shift, but the choice
for the slum-dwellers as a collective means that certain interests will inevitably be
voiced louder than others.316 Again, the inhabitants of a certain slum area seldom
constitute one homogenous group.
One objective of the Slum Clearance Board is to enable slum dwellers to live in
hygienic conditions by providing basic amenities, such as drinking water wherever
possible (emphasis added).317 Programmes and schemes set up to improve and develop the declared slum areas (so-called upgrading) are implemented through the
Board, and normally financed either by the Centre Government (occasionally by
312
World Bank web page You think Glossary.

The other two are the Bangalore Development Authority and the Greater Bangalore Corporation (BBMP).
314
Connors 2007, p. 86.
315
Amending Act 19 of 1981 to the Slum Clearance Act.
316
Personal communication, Social Development Unit officer, Water Board. December 15, 2006.
317
Slum Clearance Board, Annual Report 2004-2005, p. 3.
313
117
the Karnataka State Government) or by loan or development aid schemes. The

World Bank, the Asian Development Bank, and Australian AusAID are the most
important actors in the case of Bangalore. As Hans Schenk and many others have
shown, though, the Slum Clearance Boards upgrading is a policy which is so utterly insignificant for the majority of slum dwellers in Bangalore because they simply cannot afford the rents being charged afterwards,318 and it is futile to argue
whether improvements have been relevant: not much has been done after all.319
No NGO representatives I spoke with for this study expressed any faith in the
Slum Clearance Board; neither did Board staff make me believe in its capacity or interest in working for the urban poor of Bangalore.320 Schenk has described the circumstances of Bangalore as somewhat special in comparison to other major Indian
cites, notable being the negative attitude and the stubborn refusal of state and local authorities to recognize slums as entities in the citys urban socio-spatial structure.321 Schenk et al. also point to the widespread reluctance among government
officers [of the Slum Clearance Board] to use the state machinery to support
outsiders, especially if these are from Tamil Nadu.322
Not all the problems of slums being kept poor are, however, due to the institutional failures of the Slum Clearance Board as such, or to the law regulating its
function. The factor of vote banks and public standposts was mentioned above. In
the absence of the traditional (rural) conditions of patron-client relations between
landlords and weaker dependents, politicians become patrons of slum dwellers.
Schenk here writes that
[s]carcity is a precious element, especially for those who can command, and
hence, manipulate it. It is, therefore, not surprising that patrons command scarcity and
use it as a weapon in exercising patron-client relations.
Too large a distribution of public resources to slum dwellers (to which they are
entitled considering the many redistributive government schemes), might have
threatening effect on the grip that a politician might hold, and wants to hold over
a slum votebank. Hence there should be a substantial amount of secrecy regarding
government intentions, in order to allow politicians to transform rights into benevolent and special favours for designated groups (of clients) (emphasis
added).323
This aspect is, of course, closely related to the element of corruption among politicians, officers of such authorities as the Slum Clearance Board, and implementing
officers all of whom are economically dependent on the poor being kept dependant.324
318
Schenk 2001b, p. 266, with references.

Ibid, p. 272.
320
Personal communication, Slum Clearance Board (various officers). January 29, 2007.
321
Schenk 2001a, p. 46.
322
Schenk 2001b, p. 272.
323
Schenk 2001b, pp. 273f.
324
Cf. Schenk 2001b, p. 274.
319
118
The number of areas declared under the Karnataka Slum Areas Act, just as under equivalent acts in other States, is in no sense on a par with the actual number of
slums and other inadequate and substandard settlements. This circumstance has
grossly distorted the statistics over the decades. Against this, it is easier to understand the revolution the 2001 census brought about, being the first to collect data
about slums of India. This is even more so as the definition of a slum area is wide,
encompassing all areas that are notified by the State Government under applicable legislation, areas that are furthermore recognised as slums, and compact areas of at least
300 population or about 60-70 households in poorly-built congested tenements, in
unhygienic environment usually with inadequate infrastructure and lacking in
proper sanitary and drinking water facilities (sic).325 Clearly, smaller slum areas or
clusters of tents and huts are not captured until they have reached a certain size
and, probably, establishment meaning that temporary settlements are not taken
into account. With this reform, the opportunities for slum dwellers to be acknowledged and included in government policies and planning efforts are, nevertheless,
developing one step for the better.
7.4 Figures of poverty in Bangalore

Another question of importance for the issue of access to water is the income possibilities, purchasing power, and costs for basic needs. The minimum wage for domestic work as fixed by the Government of Karnataka is Rs.1,600 per month.326 In
the city of Bangalore and its wealthy suburbs, these salaries can be twice as high because of high demand, but the normal daily income is about Rs.53. However, many
women do housekeeping on a day-to-day basis wherever they can find work and
are thus not permanently employed. This typically reduces the monthly income to
some Rs.1,000-1,500 only.
The majority of the men, but also some women, are coolies doing manual work,
often being day-wage labourers. This normally means a very insecure job market,
often within the construction business, and on a short-term basis. A small portion
of the urban poor does some kind of artisan work as painters, carpenters, etc. Yet
others sell vegetables and fruits, buckets and pots, and other domestic items from
mobile wagons. A group of men that is comparatively better off is the auto rikshaw
drivers and private chauffeurs.
In comparison, the sweepers and scavengers not only have the dirtiest and least
prestigious of jobs, they furthermore seldom work on contract and are mostly paid
less than the minimum wage of Rs.70-80 per day. For manual road sweeping, a job
which is often done by old women, the wages have been fixed at Rs.1,800 per
month. Reportedly, few of the sweepers receive the whole of their salary because
the business is controlled by middlemen. These tasks were traditionally only per325
Census 2001, web page Introduction: Definition of slums.

According to Chamaraj, 2006a, this is set by State-level Minimum Wages Advisory Boards on a
sector-by-sector and case-by-case basis. There are both norms from the 15th Indian Labour Conference in 1957 and Supreme Court decisions on the minimum wage, but to no avail.
326
119
formed by the dalits, because of their untouchable status, but the jobs can nowadays
also be applied for by others. A task that is still mainly carried out by a certain
community is washing and ironing; the dhobis have somewhat of a monopoly in this
field and the job is thus inherited. The Muslims among the urban poor are more often than others self-employed, e.g., running small shops and stalls, but it has been
shown that this group is generally found in the really low income brackets.
Both individuals and NGOs point out that the government-fixed minimum
wages are inadequate to cover the costs of food and housing, medical expenses and
educational needs, etc., not to mention water. In addition, even the minimum
wages are not always paid. To this is added, of course, the large group of people
who earn money in the informal sector, for instance as sex workers, or who are not
able to work. Incomes among the latter are often confined to what can be begged.
A survey in Bangalore in June 2005 by Geeta Menon of Stree Jagruti Samiti (which
organises domestic workers) found the following average expenditure per month
for a domestic workers family living in a slum:
Table 2: Monthly expenditures for domestic workers family
Expenditure
Food
School fees
Repayment of loans
Rent
Health care
Electricity
Transport
Water
Miscellaneous expenditure
Total
Rs.
1,959 (65 per day)
1,221
817
555
293
279
185
54
62
5,189 (ca. 173 per day)
From Chamaraj 2006a.
This means that in a household of (usually) six people, where the woman is employed as a domestic worker and earning only the minimum wage, it is essential
that there be at least two more breadwinners. On top of the womans salary of
Rs.1,600, the average family needs at least Rs.3,600 to cover these basic needs.
Apart from loans for education and health costs, the Stree Jagruti Samithi can only
assume that this shortfall between expenditure and family income is made up
through child labour, prostitution and criminal activity.327
In the survey, the expenditure on food was the highest item, and yet we can assume that poor people often do not eat more than two meals a day, or less in the
case of absolute poverty. Water was the smallest item, and it is nevertheless a heavy
burden on the total monthly budget. From the interviews made for the present
327
Chamaraj 2006a.
120
study, it seems that slum dwellers often pay Rs.1-3 per pot and buy at least two per
day for the household, giving some 25 litres to share and a monthly cost of between Rs.60 and 180. As we will see in the final chapter, a household connected to
the Bangalore Water Board can consume 8,000 litres of treated freshwater in a
month, and pay Rs.48 only, or get up to 25,000 litres for Rs.201 (plus Rs.15 for
sanitary charges in both cases), and so on according to the costs of each slab.
7.5 Summing up
The conditions of poverty are by no means less grave in Bangalore than in other
cities in the developing world. Due to the ever-increasing economic boom, with its
ensuing residential and commercial construction mushrooming in each plot that
developers can get their hands on, the poor are shoved away. Attempts to eradicate
all traces of poverty and slum from the former garden city are, however, futile. Despite the demolition of long-established settlements and relocation of the inhabitants to the outskirts of the city, new migrants will find empty spaces and choose
the urban environment as long as their labour is needed. The development of a city
in terms of planning for infrastructure and natural resources must include all its inhabitants.
Bangalore was self-sufficient in terms of water supply only till around the second
half of the nineteenth century, when increased growth and demand forced the authorities to begin bringing in water from tanks. At that time the city was still very
small compared to today, but it became dependent on the supporting hinterland
nevertheless. Building an infrastructure network including reservoirs, pipes, water
towers, pumps and individual connections was a service that the State provided
to the citizens. The operation and maintenance of the same has since been an important task for the public utilities, not least to protect citizens health and to provide for an improved standard of living. This depends, though, on water being
pumped from a river some 100 km away. With a lowered limit on the extraction allowed, at the same time as water use is rapidly growing, the challenges are piling up.
The Water Board has estimated a demandsupply deficit of at least 250 MLD.
Most of this is met by the water users themselves via groundwater exploitation, in
the Bangalore area itself but also in the hinterland. Although methods for calculating the size of the groundwater resources in relation to aquifer recharge should
possibly be upgraded, it is clear that the region faces an increasingly difficult situation, with less water being available both per capita and in absolute terms.
121
122
Part 2
123
124
Chapter IV
Rights-talk
1 Introduction
Is there a human right to water? This question is at the heart of the problem,
Gleick contended in May 2007.328 Despite long experience working with the issue,
he still perceived the question as relevant. To discuss this topic, we need to begin
by taking one step back. The objective of this chapter is therefore to initiate the
discussion from the question; What do we mean by expressing access to water as a right?
The account starts with purely theoretical notions of rights and the concept of law,
and ends with analyses of concrete cases decided by the Supreme Court of India.
Law is always culture-specific. There are features of the Indian legal system that
would allow us to describe it as sui generis of its own kind in the sense that the
system is a mix of English common law; ancient and/or indigenous notions and
customs, more recent imports from the U.S., constitutional rights and statutory law.
The character of this system governs how the concept of rights is understood and
applied, primarily through the courts. The role of the judiciary and the discretion of
judges in making law are fundamental aspects in this regard. This becomes clear
when observing that the Supreme Court of India has essentially been responsible
for the countrys entire development in the field of water and rights.
Due to former colonisation as well as todays globalisation, much of traditional
jurisprudence remains relevant also in the Indian rights-discourse. We find, for instance, the Hohfeldian analysis of rights as consisting of a set of jural correlatives and
328
Gleick 2007, p. 1.
125
opposites to be highly relevant. The two classical schools within which the concept
of law is understood natural law and legal positivism are applicable, but complemented by values and principles based on the specific Indian culture.
This section offers a basis for discussing the difference between valid legal
rights, natural rights and human rights, and to what extent the Indian jurisprudence
and judiciary (can) take morals and other values into consideration. The concept of
judicial activism is also relevant in this regard, in how this involves a wider interpretation of the posited law for the benefit of promoting human rights.
Rather than being based essentially on natural law values, the Indian legal system has a fairly strong religious, or spiritual, foundation. Literature published during the past ten years indicates a new, general interest in coupling values and religious concepts to ecology and nature preservation.329 The specific linkage between
water management and religion is yet to be explored further, but a foundation has
recently been laid.330 It has been alleged that unless we understand how (religious)
values have affected cultural views on the environment we fail at meaningful environmental discourse, and will not be able to design successful regulatory models of
water laws.331 These issues deserve deeper study than can be given here; but an outline will be provided, based mainly on what contemporary scholars have written.
This Chapter will lay a foundation for analysing the specific discourse on (safe
drinking) water as a human right, and for meeting the general criticism of this idea
in the next chapter.
2 The language of rights332

2.1
Soft and hard law and the moral question
The language of rights takes off from the question: What are rights? What constitutes rights, how are they constructed? What sort of assertion is it to say that X has a
right to r, and what criteria would have to be satisfied for this proposition to be
true? The word connotes a notion that is an essential building block of law and the
legal discipline, but rights are also discussed in the fields of philosophy, political
science, economy, anthropology, sociology, etc.
There is no single idea on how the notion is to be understood and it often
comes with a prefix, so that a legal right denotes a different category than a moral
one, although they might coincide in the same substantial claim. Jack Donnelly thus
distinguishes between the two central moral and political senses of the word right:
329
Cf. Hinduism and Ecology: The Intersection of Earth, Sky, and Water, by C.K. Chapple &
M.E. Tucker (eds.); D. Goslings Religion and Ecology in India and South East Asia; and R.S.
Gottliebs The Oxford Handbook of Religion and Ecology.
330
World Religions and Clean Water Laws by D. Fisher-Ogden & S.R. Saxer.
331
Ibid, pp. 68f.
332
The following text refers to rights as well as to law. Both concepts have their (contested) definitions: in short, they refer to claims and liberties, and rules of conduct, respectively.
126
rectitude, in the meaning of righteousness; the right thing to do; or something

being right (or wrong); and
entitlements and claims, in the meaning someone having a right.
Both meanings of the word link right and obligation, but in systematically different ways: whereas rectitude focuses on a standard of conduct, rights-claims focus
on the right-holder. They thus emphasise the duty-bearers obligation under the
standard of conduct, and the right-holders title to enjoy her right, respectively.333
In the talk of rights, much of our understanding relates also to the notion of justice (jus, or ius in Roman law). However, there are semantic differences between
different (national) legal systems use of the terms. H.L.A. Hart observed that this
results in certain notions becoming impossible to translate and be given the proper
meaning in English:
The words droit, diritto, and Recht, used by continental jurists, have no simple
English translation and seem to English jurists to hover uncertainly between law
and morals, but they do in fact mark off an area of morality (the morality of law)
which has special characteristics. It is occupied by the concepts of justice, fairness,
rights, and obligation.334
A legal right can be (more or less expressly) based on a supporting moral justification.335 Inversely, it is a matter of debate whether certain fundamental and morally
justified rights exist irrespective of any support in law. Human rights are the archetype of this concern.336 If one takes the view that there is a human right to water
regardless of it being embodied in any law, this can be seen as founded on morals
and ethical values. On the other hand, it can be argued that there might or might
not be such a moral right, but only if it is regulated does it exist in the legal system.
The latter view excludes there being a (strong) connection between law and morals,
and this is the predominant view in much of the Western world today.
Internationally, this strictly legal perspective becomes clear when we compare
two areas that are characterised as hard law with one that is not. So-called nonnavigational uses of water are regulated in a UN treaty.337 There is also the UNECE
Water Convention (the so-called Helsinki Convention) with its Protocol on Water
and Health (the London Protocol).338 Though the former is to be ratified by 35
333
Donnelly, p. 7, with reference to Dworkin 1977, pp. 188ff.

Hart 1955, pp. 177f. In Swedish, the word used is rtt.
335
I adopt a definition of the morality of duty rather than that of aspiration. The former starts
at the bottom and lays down the basic rules without which an ordered society is impossible, or
without which an ordered society directed towards certain specific goals must fail of its mark,
Fuller, pp. 5f.
336
Cf. Hart 1961, Ch IX; Cruft, p. 348.
337
The UN Convention on the Law of the Non-navigational Uses of International Watercourses,
adopted by the UN General Assembly by resolution A/RES/51/229 in May 1997.
338
The Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, adopted in 1992 by the UN Economic Commission for Europe, in force since October
1996, and the Protocol on Water and Health of 1999, in force since August 2005.
334
127
States parties or regional economic integration organisations before it becomes

binding, it can already be argued that it serves to codify the parties intentions. The
Helsinki Convention and London Protocol apply to Europe only. Yet, both are
fully acknowledged. On the contrary, the right to access to water for drinking is still
termed soft law by many, because it is not explicitly enumerated as a right in any general human-rights treaty.339 Undoubtedly, this right has strong moral support, but is
not considered a right in the strict legal-positivist sense as long as it is only contained in various resolutions, principles and guidelines that lack binding force. The
question is subject to debate, as we will see.
2.2 Defining rights

2.2.1 Rights as relations: Hohfelds analysis
Two340 main theories seek to explain the nature and function of a right: by describing it as a will or an interest. This is to be treated further below but in short, the will
is often expressed as a choice; the right-holder is in control of the right and
chooses if and when to claim it. She/he can decide to waive the right if that is preferable. In contrast, those seeing rights as reflecting interests link the benefit of the
right-holder to the justification of the duty-bearers obligation.341
Proponents of both theories also define rights in terms of duties, holding that
rights correlate to duties. This in turn makes for a most fundamental understanding
of rights as relational. This can appear as two sides of the same coin: to possess a
right is to be the beneficiary of anothers duty, and vice versa. This remains the most
referred-to point of departure for talking about rights in a legal and philosophical
way.342 As John Austin wrote, [e]very right rests on a relative duty lying on a
party or parties other than the party or parties in whom the right rests.343 Better
known, though, is Wesley Hohfelds analytical system of legal rights, which is based
on four distinct but related terms, or elements. These are often used interchangeably but are different conceptually. I perceive the dichotomy of rights and obligations (duties) as fundamental in the attainment of improved access to water, so this
339
The right is expressly regulated in the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention on the Rights of the Child; and a few other binding
treaties but these have narrow applicability. Cf. UNHCHR Annual Report, pp. 5, 21.
340
Freeman & Lloyd, p. 353, note 73, mention a third type of view that relates rights to power.
This was advocated by Hobbes and others during the seventeenth century and later by positivists
such as Austin. According to Freeman& Lloyd, a variant was the realist movements view that
rights are expectations.
341
However, as Cruft, pp. 347, 349, has pointed out, neither the will theory nor the interest theory reflects all the ways in which the term right is actually used in contemporary public political
and ethical debate.
342
Hohfeld 1913 and 1917; cf. Benn; Cruft; Finnis; Freeman; Hart; Munzer; Penner; Rainbolt;
Wenar.
343
Austin, footnote p. 285, cited in Benn. For Bentham and Austin, a duty exists only where the
law imposes (and enforces) a sanction for a breach of it.
128
system and its implications will be given quite some attention in the following
analysis.
Hohfeld observed that one is said to have a legal right under any one of four legal conditions. I hence have a right
1. if I am legally permitted to behave in a certain way (in which case I have a legal liberty);
2. in some cases, if some other person is legally required to behave in a certain way
(in which case I have a legal claim-right);
3. if I am legally empowered to effect a change in someones legal condition (in
which case I have a legal power or capacity);
4. if some person lacks the legal power or capacity to change my legal condition (in
which case I have a legal immunity).
Hohfeld is also credited as being the one behind the idea of a strong correlative
thesis.344 This is presented in a logical form, where X is a right-holder and Y a dutybearer:
X has a claim that Y (phi) if and only if Y has a duty to X to .345
A right can further be analysed as consisting of elements: claim (or demand-right);

privilege (or liberty); power; and immunity, all of which can be rights in themselves.
Hohfeld arranged the fundamental legal conceptions in jural opposites and jural
correlatives thus:346
Opposites:
If X has a
-"-"-"-
claim then X lacks a

privilege
-"power
-"immunity
-"-
no-claim.
duty.
disability.
liability.
Correlatives:
If X has a
-"-"-"-
claim then some person Y has a duty.

privilege
-"no-claim.
power
-"liability.
immunity
-"disability.
344
Penner 1997, p. 300.

1. X has a claim-right that Y , if and only if Y has a duty to X to .
2. X has a liberty/privilege to , if and only if X has no duty not to .
3. X has a power (relative to Y) to , if and only if X has the ability within a set of rules to alter
her own or anothers Hohfeldian incidents (Y has a liability to have his legal position
changed by Xs -doing).
4. Y has an immunity (relative to Xs -doing), if and only if X lacks the ability within a set of
rules to alter Ys Hohfeldian incidents (position).
Hohfeld used A instead of X and B instead of Y, changed here for the sake of consistency. Supplements within brackets added by Finnis 1980, p. 199.
346
Hohfeld 1923, p. 36.
345
129
In other words, Xs right against Y is meaningless unless Y has a corresponding

duty to honour Xs right. When no duty rests on Y, it means that Y has a privilege/liberty and can do whatever he or she pleases, and X has no right to prohibit
Y from doing so. Hohfeld also held that a right applies only to a human relationship, not to a thing (right in rem).
It follows from this correlative thesis that rights in, for instance, property apply in
relation to other peoples rights, duties, privileges, and so on. The relations are often referred to as a complex bundle of rights, although obligations etc. are included.
Hohfelds system pioneered the analytical understanding of various rights
duties relations. Many scholars have taken it as the basis for furthering the interpretation of what rights are, and what functions they have. Stanley I. Benn has
pointed out that Hohfelds correlative relations are, in fact, identities: a right
(claim) is a duty looked at from the standpoint of the other term in the same relationship [but] this does not imply that to every duty there necessarily corresponds a
right.347 Benn also holds that though Hohfelds scheme exhausted all the fundamental types of rights, there are some that do not fit in comfortably. For instance,
what kind of a duty, liability, no-right, or disability would correspond to the right
to vote?348 If we answer Benns question by pointing to constitutional provisions
regarding suffrage, which oblige the democratic state to let citizens above 18 or
some other age exercise their franchise, we see that each nation-state has regulated
this slightly differently. The conclusion is that suffrage is a construction; the right is
instituted by a legislator, and it can be and has in many instances been altered
so that, e.g., women are allowed the right to vote. According to Benn, Hohfeld insisted on the difference between natural rights and legal relations, and considering
that Hohfeld expressly treated legal rights in his texts, we can assume that his analytic scheme applies to positive rights only.349
Others have shown how all Hohfeldian relations have three parts: two agents
and one content. For example, in the sentence Madeline has a claim with respect
to Geoff that Geoff should not drive Madelines truck, Madeline and Geoff are the
agents and that Geoff should not drive Madelines truck is the content. 350 However, not all claim-rights are caused by voluntary actions such as signing a contract,
and not all claim-rights correspond to duties in just one agent. For instance, a child
has a claim-right correlating to a duty in every other person not to abuse her or
him. In regard to both the child and to Geoff and Madeleine, we see how a claimright can require duty-bearers to refrain from performing some action; can thus be
a negative verb.351
Hohfelds system is highly relevant for our thinking about water as a right
(claim, etc.) that corresponds to obligations, and will return throughout the book.
347
Benn, p. 196.
Ibid, pp. 196f.
349
Ibid, p. 197; Hohfeld 1913, 1917.
350
Rainbolt, p. 11.
351
Wenar 2007.
348
130
2.2.2 No right without remedy

According to a legal maxim, for every right, there is a remedy. In relation to English law,
William Blackstone said that every right when with-held must have a remedy; an injury such as refusal or neglect of justice can be remedied by a writ of mandamus. 352
As an idea, this complements Hohfelds system: the right-holder should be able to
rely on another person or agent to fulfil the duty of remedying every withheld right.
The maxim can also be read contrariwise: a proper right is combined with a remedy from the outset, or a remedy is later pronounced as a means to get right.
Some therefore argue that a right is legally valid and has a value in its own only in
so far as it may be reliably enforced.
In practice the maxim is realised via the legislator who provides appropriate
remedies in the law (as specified in the constitution, procedural law, criminal law,
civil law and so on) and the executer who administers the repayment, repair, etc.
According to the rule of law, the enforcement should be provided through the
courts. A closely related and basic question is the right of every citizen to address
an independent court; one which has the autonomy and power to take up cases referred to it and make decisions without considerations of politics or other vested
interests.
2.2.3 Rights as will
Generally stated, will-theorists maintain that there can be no such thing as an unwaivable right, i.e., one which the right-holder can refrain from enforcing or exercising. There are various interpretations of the will-theory and, for instance, the
element of holding a right is taken rather literally by Hart, the father of the theory.
According to him, X and Y are related by an obligatory bond but not bound as by a
chain; Y is bound whereas the other end of the chain lies in Xs hand to use if he
chooses.353
The will/choice is essentially concerned with the liberty of the individual. Rights
render the holder control and power over others in their roles as duty-bearers.354
Carl Wellman asserts that if there is one central thesis which is common to all will
theories, it is that a right confers some special status upon the will of the rightholder, but not necessarily an element of option. Rowan Cruft summarises the discourse by saying that a right essentially gives effect to or protects the rightholders freedom of will with respect to a particular issue.355 It is entirely within the
individuals choice whether to claim, enforce, waive, etc., his/her rights. The authority of the right-holder to determine how others should act has by Hart been
352
Blackstone, Commentaries on the Laws of England (hereafter: Bl Comm) Book III, Ch 7, p.

109. A writ is a command, a court order, issued to a subordinate court, an officer of government,
a corporation or any other institution for the performance of certain acts or duties.
353
Hart 1955, p. 181.
354
Wenar 2005.
355
Cruft, p. 367.
131
expressed as small-scale sovereignty.356 But Cruft makes the observation that, according to this theory, relational duties can only be genuinely owed to people who
hold powers to waive or enforce these duties, and thus, only if accompanied by
powers of waiver-or-enforcement would ones power, immunity or liability protect
ones choices (emphasis in original).357 J.E. Penner writes that waivable rights are waivable because it is in the interest of the right-holder that they should be, and vice
versa.358
To Hart, it was important to emphasise that there could well be rights corresponding to so-called no-duties, but being capable of benefiting from the performance of a duty could not be a sufficient condition for having a right. X might have a
right r in the meaning that X is entitled to claim its fulfilment by Y, and is in a position to waive it and even to release the duty-bearer from the burden of securing r.
What X has in relation to Y is to be understood as a right.359 However, there might
also be a third party Z whose interest is promoted by Xs right over Y a beneficiary. Hart hence held that
while the person who stands to benefit by the performance of a duty is discovered
by considering what will happen if the duty is not performed, the person who has
a right (to whom performance is owed or due) is discovered by examining the
transaction or antecedent situation or relations of the parties out of which the
duty arises (emphasis added).360
The third party is no right-holder by virtue of having an interest in a right. Hart

therefore drew a much-criticised conclusion: although there might be a (moral)
duty to treat animals and babies well, they are not to be extended rights to proper
treatment. We should rather just say that it is wrong to ill-treat them, as a consequence of a general sense of a moral duty to do so (emphasis added).361
When we examine this and the above features of the will/choice theory we realise that it is of little use to understand the nature of certain kinds of right. Will-rights
function well to explain the nature of a relationship between private subjects in instances of property rights.362 We can picture a bond established under a valid contract, according to which Y, a landowner, has undertaken to deliver /ground/water
to X on a regular basis, in exchange for a settled remuneration. Both X and Y can
be individuals, groups of individuals, or juridical persons. (For now, we ignore the
rules of property and the administrative, environmental, etc., provisions that govern
the situation, some of which are highly disputed. We will also not consider whether
the water supplied is for drinking or other household purposes, irrigation, for industrial use, or other.) The question is: Is it possible to hold a right in water? The
356
Hart 1982, p. 183.

Cruft, pp. 367f.
358
Penner 1997, p. 302.
359
Hart 1955, pp. 179f.
360
Hart 1955, p. 181.
361
Ibid.
362
Cf. Simmonds, pp. 2f.
357
132
answer could be yes, if the consumer/right-holder is in such a position of power

that he or she can choose when to turn the tap on and off; when and where delivery is to take place; when to end the contractual relationship, and so on. In other
words: Xs will determines whether he/she claims the right to water, or refrains
from doing so. Y is duty-bound to deliver the goods (the water) and should Y fail
to do so, X is (ordinarily) entitled to remedy.
The problems with applying the theory manifest themselves if the relationship
between X and Y does not have a relatively equal foundation, such as when X has
(too) little purchasing power to become (or remain) a right-holder/consumer. In line
with the theory, X and Y cannot even enter into a contractual or other relationship.
If we speak of a thing so fundamentally necessary for survival as water, we could
possibly imagine that it is arranged so that Y agrees to deliver the water for free, or
heavily subsidised. If we still discuss an agreement between private subjects, such
contractual conditions entail no objections; X is a valid right-holder and can demand of Y, the duty-bearer, that he fulfil the obligation to supply water.
However, if we as X imagine the unserved and non-connected one billion people lacking access to safe water and living under conditions of scarcity will the exercise of the agreed-upon right be a matter of choice, and of actively being in
charge of the relationship363 to Y? As rights are supposed to work not simply by
being voluntarily respected by duty-bearers but, most important, by being exercised
by right-holders,364 it seems as if X themselves might have to put their rights into
practice; demand their supply of water from Y. The remedy at hand, to ultimately
enforce compliance, is mainly via court action an often very costly and protracted
way of getting justice done.
Now, if we put the state in the place of Y a situation that conforms better to
reality in the case of water provision does that change the situation? What binds
Y to X is then possibly a social contract and/or some version of a welfare state,
but, with less than a legal relationship being established, how can the state be held
responsible as a duty-bearer? In other words, is it feasible for citizens to become
small-scale sovereigns, as Hart explained the relationship? The answer is negative, and the citizens of democratic countries are referred to voting in general elections, again a very slow process and one with no guaranteed outcome.
To me it seems clear that safe drinking water can only by way of exception be
seen as a right over which X has power and control and can exercise a choice
whether to waive or not. We need to explain both the right and the duty differently.
Criticism of the will/choice theory of rights has also sprung up in several other
respects. In general, rights-as-will would inevitably involve procedural problems for
all those not in a position to effectively assert them. The child, mentally disadvantaged, illiterate or other person with limited capacity would all encounter difficulties
in deciding whether to claim their substantive rights, and subsequently to carry out
the claim. Rights are also not so much at the will of the holder where there is no
363
364
Donnelly, p. 8.
Ibid, p. 210.
133
identified addressee to secure them. The criticism has also been formulated with
the argument that the duties which correlate with rights are only contingently related to the capacity of anyone else to demand or waive the performance of the
duty. Thus my right to life may, but need not, entail that I may release you from your
standing duty not to kill me (emphasis added).365
2.2.4 Rights justified by interest
The understanding of rights as based on, or linked to, power and will seems to be
the most prevalent among scholars. However, a theory which is more appealing
here explains the function of rights as being to further the holders interests, generally seen. Again, several versions of this theory exist.366 For instance, Tom Campbell
and others with him hold that X can have a right in moral theory or in a legal system and the protection or advancement of his/her interest is recognised as a reason for imposing obligations on a duty-bearer.367 The right as such can thus also exist whether or not it is actually imposed, and regardless of whether the addressee is
known.
John Finnis, who bases much of his ideas on Thomas Aquinas, holds that the
modern vocabulary on rights takes the point of view of person(s) who benefit(s) from that
relationship (emphasis added).368 In other words, there is a special angle from
which to talk about what is just: that of the other(s) to whom something is owed
or due, and who would be wronged if denied that something. The benefits and interests of such person(s) precede the duties. Similarly, Joseph Raz, one of the foremost persons of the interest theory, has offered a definition. Accordingly,
X has a right if and only if X can have rights, and, other things being equal, an
aspect of Xs well-being (his interest) is a sufficient reason for holding some other
person(s) to be under a duty (emphasis added).369
Raz adds as a principle that an individual is capable of possessing (having) rights if

and only if his well-being is of ultimate value (or if, alternatively, we are speaking of
an artificial person, e.g., a corporation). Raz also notes that though a right is a
very general term, one rarely asserts a certain right without simultaneously specifying what the right consists of. In addition, detailed explanations of rights are in part
linguistic explanations a right in a car differs from a right to a car but they depend partly on political, legal or moral arguments, which might include a discussion
on how far certain fundamental rights take us. The definition Raz offers aims to be
neutral concerning such detailed questions.370
365
T. Campbell 1985, p. 11.

According to the older version of the theory, proposed by Austin, Bentham and Jhering, X has
a right when she/he is the (intended) beneficiary of anothers duty.
367
T. Campbell.
368
Finnis 1980, p. 205.
369
Raz 1984, p. 195, holding that this definition draws elements from Bentham, Dworkin, MacCormick and Kenneth Campbell.
370
Cf. Raz 1986, p. 167.
366
134
Inversely, if an individual has a right, then a certain aspect of his/her well-being

is a reason for holding others to be under a duty.371 Rights are (nothing but) grounds
of duties in others, and in every right there is a correlative duty, or duties (though
not all duties are grounded on rights). Similarly, Neil MacCormick sees legal rights as
reasons for imposing duties, rather than simply being correlatives of the duties. 372
MacCormick also criticises Hart by contending that were the will-theory of rights
correct, then an inalienable right could not be a right (if by inalienable we mean
that the right-holder has no control). Hence, the will/choice theorist would be unable to accept that many fundamental human rights are rights at all.373
From the above definition we realise that both Raz and MacCormick defy the
Hohfeldian axiom of every duty corresponding to a right, but that they maintain
how the opposite is true: to every right there is a duty. Many duties fall short of securing their object, though. A right should (therefore) not be understood as there
being a duty from another, only that there is a ground for justifying anothers duty,
where there are no conflicting considerations of greater weight.374 The holding that
another has a duty might be due to certain facts peculiar to the parties involved, or
generally to society. Many duties are negative; duties not to expose the right-holder
to something.375 In general, Raz speaks of liberties but also of the limits to obligations to act to promote certain interests. Rights may be held against certain persons
and not others, but some are held against the world at large. Likewise, a right
can impose a duty to do certain things but not others. The right to life may impose a duty not to kill or endanger life of another without imposing a duty to take
whatever action is necessary to keep him alive. Which duties a right gives rise to depends partly on the basis of that right, on the considerations justifying its existence. It also depends on the absence of conflicting considerations. If conflicting
considerations show that the basis of the would-be right is not enough to justify
subjecting anyone to any duty, then the right does not exist (emphasis added).376
Though there may be no legal duty for the individual to save someone elses life under all circumstances, the moral case might be differently argued. More interesting
here, though, is how far the state (and like agents) should take positive action for
the sake of life and subsistence. Razs reasoning seems applicable, in spite of concentrating on how the state ought to refrain from doing things in order not to infringe on liberty: the problem of conflicting considerations is prevalent in the implementation and enforcement of many human rights. Priority among them is, nevertheless, probably to be determined on the basis of, among other things, the con-
371
Raz 1984, p. 200.

MacCormick 1977, pp. 199ff.
373
Ibid, pp. 198f; Penner 1997, p. 301.
374
Raz 1984, p. 199; 1986, p. 170.
375
Raz 1986, p. 171.
376
Ibid, p. 183.
372
135
tent, urgency, utility, moral values, political credit, and bases377 of the rights at stake
as well as an assessment of what the corresponding duties would entail. In practice, the monetary costs interlinked with the duties may also be decisive for imposing them fully, partly, or not at all. Many factors may thus contribute to the considerations in instances of conflicting interest-rights but the rights would still exist,
based on their moral and/or legal validity. Razs argument in this respect cannot
therefore be upheld.
2.2.5 Summing up
Razs theoretical explanation of rights as serving to benefit Xs interests is well fitted for the purpose of discussing a right to water. In the context of water, the legal
notion of right can be explained as the fundamental interest which the individuals
well-being constitutes, and that it corresponds with a justified obligation on the
duty-bearer. Therefore, we can conclude from this discussion of the nature and
function of a right that
X has a right to water because her well-being is of ultimate value and, other things
being equal, this aspect of Xs well-being/interest is a sufficient reason for holding
the state to be under a duty.
In what follows, we will dig deeper into the schools of jurisprudence that have been
implicated briefly in the foregoing, to ask whether we should understand law as
man-made (positive) or higher (natural), or a combination of the two. A rather detailed picture of law is given to provide a solid comprehension of the fundamental
concepts and the prevailing differences and similarities. Against this, it is easier to
appreciate the special features of the Indian system in so far as these follow or deviate from the classical schools.
The strictly legal positivist presumably regards the human right to water as valid
law, but only if it is legislated on.378 A natural-rights theorist supposedly takes a different view: the law ought to conform to the fact that a right to water applies to all,
by virtue of everyone being human and having certain irrefutable, eternal needs.
3 Jurisprudential matters
3.1
Seeing law as posited
In jurisprudential language, rights are commonly talked of in the framework of understanding law as instituted, enacted, posited by legislators, judges or other
377
In terms of the basis of a right, Raz, 1986, pp. 178f., writes that just as only those whose wellbeing is of ultimate value can have rights so only interests which are considered of ultimate value
can be the basis of rights. He adds that there are plenty of counter-examples of rights protecting
interests of merely instrumental value.
378
By legislated is here also meant court decisions and other sources of law, and what can be inferred from the wordings in these sources.
136
agents with the corresponding legitimacy and authority. Legal positivism explains
the authority and rationality of the state to govern via a set of rules. This approach
to rights and law was introduced379 by Jeremy Bentham around the turn of the eighteenth century and furthered by Austin. Seeing, as Austin did, law as the command of
a sovereign over his subjects means that moral values are of little or no importance
in determining the essence and validity of rights and law.
According to Austin, the sovereign is the one and true maker of the law, and the
foundation of law and rights is, correspondingly, equal to his will. In other words,
the sovereign is the source of the law the one and indivisible legislature, the authority
behind what is legally regulated. Austins teachings imply that there can be no such
thing as (public) international law to regulate the conduct and relations of states
and international organisations. This would be theoretically impossible foremost
because of the absence of (a counterpart to) a (one) law-maker that is considered
legitimate by all states; a compulsory court system with mandate to settle various
disputes; and a coercive police force to carry out inspections, enforce sanctions, etc.
Now, the reductionist stance that Austin represented is obsolete in so far as
lawyers and legal theorists acknowledge the factual existence of a whole body of international law, with sources ranging from treaties, covenants, protocols, custom,
and general principles, to non-binding guidelines and doctrine. International law
further contains regimes dealing with treatment of individuals within state boundaries (such as human rights) as well as with treatment of the environment, natural resources, and issues of development.380 Legitimate law-makers have simply been introduced at many levels.
More importantly, a number of features of most modern-day societies contradict the original positivist definition of law. To start with, the maker and source of
law is no more seen as a politically superior and illimitable sovereign whose command is the law. Democratic forms of government give the electorate the opportunity to choose their legislators. Most democracies profess themselves to the
rule of law rather than a rule of men:381 their governments are subject to, and not
above, the law in their legislatory task. A system of checks and balances also applies
in those cases. Moreover, a federal republic such as the U.S.A. or India will, by virtue of its constitution, have delegated its law-making power to more than one sovereign legislator. These are situated at different levels, just as decentralisation is
commonplace in parliamentary democracies.
379
It was Thomas Aquinas who coined the term, though.

The implementation of international law depends largely on states and other parties good will.
The UN organisation has certain mechanisms to enforce the rules agreed upon, including reporting. The Security Council is charged with power to establish peace-keeping forces, introduce
sanctions and authorise military action. States can also take counter-measures against other states,
such as customs tariffs, to bring about desired changes in international relations. Far-reaching exceptions apply in regards to the EU Member States.
381
Roger Cotterrell, 2003 p. 70, has said that Austin pronounced a theory of the rule of men: of
government using law as an instrument of power.
380
137
Law has a source-based character, according to contemporary legal positivism.

This is sometimes referred to as the pedigree thesis, which explains the validity of
law in terms of how or by whom standards are promulgated. 382 Further, in accordance with the social thesis, law is a social phenomenon, depending for its existence, validity and obligatoriness on social facts. These facts legislation, custom,
judicially established precedents are the sources of law.383 Rules of law can therefore be distinguished by identifying the manner in which they were adopted and/or
further developed. Moreover, according to the discretion thesis, judges play an
important role in supplementing valid law and existing rules. They manufacture
new and fresh law, hereby exercising their discretion.384
In a modern legal system not all rules need to be enforced by means of threat of
sanction many regulations are regarded as valid and adhered to nevertheless.
Rights are in fact often accompanied by obligations which the addressees abide by
to maintain social order. A popular explanation of why people obey laws is that
they do so because they conceive of their governments and other authorities as legitimate representatives, with a well-founded power to enact laws and institute
rights and duties on their behalf. Hart spoke of there being a normative terminology of ought, must, should, right, and wrong among people.385 Similarly, states make efforts to comply with international law to keep up an international political order, an end that is in their own self-interest.
The nature of positivist law is seen as dynamic rather than static. The law is
never complete, in the sense that the legislator might have left gaps, sometime intentionally to give room for contextual readings. Where an interpretative judgement
or choice is required to implement the law, the positivist will have no direction to
follow apart from the prerequisites and criteria set out in law, together with other
legal sources and such principles of interpretation as are acknowledged. Principles
and guidelines employing more value-laden morals and ethics will not be applied by
the strict (dogmatic) positivist. Perceiving law in this way makes it a human creation
and a social construction, ready to be altered and improved.
Hence, on the present-day view of the positivist approach, law is what has been
posited by a competent law-maker. To establish the source of the law is fundamental. Yet a plethora of sources is acknowledged: be it a legislator in the form
of parliament or a decision-making authority with sufficient powers, and/or a court
these bodies pronounce the law and thereby set the frames for what rights and
duties exist in a society.
The positivist stance is that social facts condition and determine the validity of
law: proper enactment is fundamental. The acts and rules emanating from the legislators desk, and decisions reached in the courtroom, are the sources of law, or at
382
Harts version of the pedigree thesis differs in that he explains validity in terms of the rule of
recognition and emphasises the procedural part of the promulgation.
383
Dworkin 1978, pp. 17f.; Finnis 2007; Himma 1999, 2006; Marmor.
384
Himma 1999, 2006.
385
Hart 1961, p. 56.
138
least they are, in Andrei Marmors words, conventionally identified as such in each
and every modern legal system (emphasis added).386 Such a view takes for granted
that there is one way of interpreting the concept of law and, correspondingly, what
rights are recognised by the system. It says nothing, however, about how we can
and should regard alternative ways of ordering conduct, or whether less modern, or
less mature, systems can per definition be legal systems. In India, for instance, we
find that ancient principles are sometimes referred to in parallel with the statutory,
posited regulations this practice does not diminish the role of the conventional
sources as such, but it raises the question of whether we can and should measure
law by the same standards everywhere. In addition, the discussion of water access
includes the assertion that water is a natural right. The underlying question of equity that this presents draws on the idea of a moral justification of such rights.
Traditionally, legal positivism considers neither moral ground nor peoples particular views or general sense of justice as by any means necessary in determining
what the law is and how rules are to be interpreted. If a rule violates a standard of
morality, that would not disqualify it as law. More fundamental is that we identify
the appropriate, legitimate way in which the rule was promulgated. Conceptually,
there is a detachment between law and morality or, in other words, between what
the law is, and what the law ought to be (the separation thesis). Hart held that the
question of whether a rule or a legal system is law is conceptually separate from its
moral merit.387 The separation thesis has two main lines, advocating inclusive and exclusive legal positivism, respectively. The latter means that the existence and content
of law is always determined by reference to its legally binding sources; these provide solutions to questions of law, without the need for any recourse to moral argument.388
The inclusive line takes a softer point of view: legal systems can condition the
validity of law as to its moral content, value, etc.389 Cases can be solved on an ad hoc
basis in which judges take the moral considerations they deem required. However,
they will always depart from and decide the case within the framework of the binding legal sources, the valid social facts.390
The debate will continue on whether legal systems and the content of law can
incorporate moral constraints. But in order to fully understand rights and law pertaining to water, we need to supplement the picture of instituted, positive law with
the theory of natural law and rights. It is essential to apprehend the debate between
the positive theorists and the natural theorists if we are to discuss the meaning of
expressing water as a right.391
386
Marmor.
Bix, p. 75.
388
Cf. Himma 2006; Raz 1979, p. 49.
389
Bix, p. 75, footnote 75.
390
Himma 2006, citing Raz 1979, pp. 49-50.
391
A distinction sometimes made between two definitions of the rule of law a thick and a thin
resembles inclusive and exclusive positivism. On the thick definitions, the rule of law is the core
of a just society and inextricably linked to the notions of liberty and democracy. Adherents such
387
139
3.2 Seeing law as natural

Proponents of natural law claim that the moral content of norms, and not just their
social origins, also form part of the conditions of legal validity.392 According to the
classical theory of natural law and natural rights393 there are certain principles of human conduct with which man-made law must conform in order to be good and
even valid. The secular version of the theory emphasises human beings morality,
(potential) conscience, and need for guidance in the form of law to attain the common good.394 Natural law is considered eternal and non-changeable by virtue of its
character as law higher than the law of human societies. Blackstone in his Commentaries on the Laws of England from the 1760s pronounced this as follows:
[T]his law of nature, being coeval with mankind and dictated by God himself, is
of course superior in obligation to any other. It is binding over all the globe, in all
countries, and at all times: no human laws are of any validity, if contrary to this;
and such as are valid derive all their force, and all their authority, mediately or
immediately, from this original (sic).395
Natural law is discovered by application of reason.396 The contemporary theory or

theories of natural law involve a belief in the normative strength of various abstract
principles, functioning to recognise individual human dignity and worth.397 In line
with this is the conviction that humans have rights because of their nature, rights
which cannot be denied anyone on grounds of gender, citizenship, location, status,
activities, disposition, personal views or the like. They apply to all people regardless
of whether they are inscribed and established as legal rights.
John Locke claimed that the rights to life, liberty and property have a foundation independent of the laws of any particular society. They are based on political govas Friedrich Hayek and Cass Sunstein say a country can be spoken of as being ruled by law only if
the states power is constrained and basic freedoms and civil and political rights (speech, assembly) are guaranteed. The rule of law includes elements of political morality. The definitions of a
thin rule of law are more formal: the important things are not democracy and morality but property rights and efficient administration of justice. Laws must provide stability and predictability
but do not necessarily have to be moral or promote human rights. Anonymous 2008e, p. 96.
392
Marmor.
393
In the modern tradition, many theorists see natural rights as the alter ego of natural law, or
something interchangeable or at least closely connected. Some hold that the modern idea of natural rights has grown out of the natural-law theory. The more traditional conceptions of natural
law emphasised duties, whereas natural rights normally focused on privileges or claims to which
an individual was entitled. Hart, who wrote extensively on natural law, considered natural rights
as a distinct entity of discussion. Cf. Bix, pp. 69-70; the Columbia Encyclopedia on Natural
rights; Finnis 1980, p. 198; Hart 1955; Tuckness; Wenar 2007. Here I use the notions natural
law and natural rights interchangeably.
394
Here I mainly describe todays secular approach to the natural law theory. The divine law in
the Christian tradition, thought to be revealed mainly through prophets and the scriptures, nevertheless played an important role in the early development of natural law.
395
Blackstone, Bl Comm, Introduction, Sec 2, p. 41.
396
Cf. Locke, for instance An Essay Concerning Human Understanding.
397
Reynolds, p. 441.
140
ernment being legitimate and justified, as a result of humans being naturally free
and equal (the theory of the social contract) and able to resist a government which
does not protect their rights. Likewise, by virtue of being higher, natural law is
sometimes claimed to exist even when it is not actually enforced by our societal institutions. For Locke, natural rights are not to be infringed by the government, i.e.,
there is a right to freedom from state interference. This is a negative interpretation
of rights, which involves no obligation on the state/government to promote rights
through positive action, such as by furnishing citizens in general or at least underprivileged groups with benefits.
Natural-rights theories assume that the endeavour to enact (posit) good law
must entail a search for what it ultimately ought to be, in order to comply with the
standards of the higher law. This has been expressed in the phrase an unjust law is
not a true law. Law, in this traditional perspective, can thus be seen as morally
problematic. While normally an indispensable instrument of great good, it is simultaneously an instrument that readily becomes one of great evil unless law-makers
and interpreters vigilantly make it good by recognising and fulfilling their moral
duty to do so, both in settling the content of its rules and principles and in the
procedures and institutions by which they make and administer it.398 The role of
practitioners in acknowledging and incorporating the values that natural law proposes becomes essential, but is carried out only with some difficulty. As we will see,
this aspect is still at the core of the problem of natural law.
While some modern naturalists are self-proclaimed human-rights lawyers, there
are also scholars who are ascribed to the field of natural law more because of their
criticism of legal positivism. Ronald Dworkin and Lon Fuller are the two most renowned.399 Dworkin avoids the label natural law but once contended that the content of law might depend on the correct answer to some moral question and that
if so, he might be guilty of natural law.400
Considering these two theorists, we can observe that todays natural law is explained partly as anti-positivism. Nevertheless, the approach to morals, ethics, values and reason constitutes a classic divide between legal positivism and natural law.
Having said this, we now look more closely at a boundary resolution that has
taken place during the past fifty or sixty years and led to a lessening of difference
between the two schools. This process has taken place much due to a rereading of
398
Finnis 2007. Cf. Hittinger.

Fuller, pp. 106, 209, sees law as a process or function, as the enterprise of subjecting human
conduct to the governance of rules. Law is thus necessarily subject to a procedural morality.
Rather than seeing law as a command from the sovereign or as the one-way projection of authority that modern positivism is about it is to be understood as depending on a reciprocity of
duties between citizens and the government as law-maker. In terms of rights and claims, Fuller is
however more concerned with the morality of duty and the need for functional regulation of
proper conduct. The regulation as such also needs to satisfy demands for internal morality, such
as that laws remain stable over time. Cf. Bix, pp. 77f.
400
Dworkin 1982 p. 165, in Bix, p. 83.
399
141
one of the oldest of naturalists Aquinas at a time when there was little interest
in and respect paid to natural law.
3.3 Revision? Modern-day ought and is

3.3.1 From higher to Hart
The process of closure between positivism and natural law has occurred simultaneously with a widened understanding of and interest in the worlds legal systems. 401
However, much of the reason for the renewed attention paid to natural rights and
natural law must be linked to the aftermath of World War II, in Germany and
many other Western nations.402 Numerous legal scholars have subsequently emphasised, with more or less express reference to the laws instituted by the Nazi regime,
the maxim that unjust laws cannot be true laws. The methods of totalitarian states
had included restriction of liberties and many other abominable actions, performed
in the name of valid law that was in turn pronounced within the framework of the
legal system. For comparison, it can be noted that after the proclaimed State of
Emergency in India had come to an end in 1977, it was widely held that the legal
positivism of the Supreme Court had helped the political establishment against dissenters403.
A call for justification of state power to rule and regulate its citizens began with
references to the higher laws and values. The competence of the law-making authorities to promulgate obligations should be limited in accordance with such values. The modern natural-law discourse gradually focused on ideologies and the
rights and liberties the individual should be able to enjoy in relation to the state.
The equality of all human beings regardless of gender, citizenship, race, etc.,
was also in focus.404 A new feature of this discourse was that natural law was no
longer perceived as eternal and unchangeable. Rather, it also can and needs to be
adjusted to context and prevailing societal conditions.405
Several other steps and components can be identified as important to the process of bridging the gap between this new form of natural law and the gradually revised legal positivism. Proponents of natural law and natural rights have, for instance, come to realise that codifying principles and ideals results in their being perceived as stipulated sources by (more dogmatic) law-applying institutions; this may
provide them with the strength and authority needed for them to be acknowledged
and realised. This is not least important in relation to human rights: as indicated
401
Cf. Freeman & Lloyd, p. 129.

Karl Olivecrona with references, pp. 71ff., notes that England and Scandinavia were the countries least affected by this new interest in natural law: England had its Austin, and Sweden and
Denmark the Realist movement with Axel Hgerstrm as forerunner.
403
This establishment, under the then Prime Minister Indira Gandhi, relied on the judiciary being
biased and in favour of property owners, princes, political leaders, and civil servants. Sathe, pp.
104, 106.
404
Olivecrona, pp. 72f.
405
Ibid, p. 74.
402
142
above, the human right to water is not considered a binding right by all as long as it
is not expressly regulated in the sense of an all-encompassing right.
Another feature is that convinced positivists have had to give in to the observation that there are several links between the validity of law, and morality (ethics),
and the law is not by definition a strictly utilitarian enterprise. Hart was one of the
more important proponents of a closure. Himself a positivist, he suggested that because the theory of natural law had been advanced as part of a general conception
of nature, it might have seemed to its critics to spring from deep and old confusions from which modern thought has triumphantly freed itself.406 To overcome
these confusions, Hart managed to further the positions from a sociological point
of view.407 He described an intimate connection between the two theories of
moral versus legal rights,408 and stated that there are many different types of relation between law and morals statements undeniably different from the contemporary approach.409 Indeed, Hart observed, natural law contains certain elementary truths of importance for the understanding of both morality and law.410
Hart spoke of there being at least one natural right: the equal right of all humans to be free.411 He was clearly concerned with the role of law in society and humankinds progress. The central indisputable element, which Hart thought gave
empirical good sense to the natural law terminology, was held to be a modest objective: humankind strives to realise its optimum state or end, which is survival, and
we must assume that everyones aim, generally speaking, is to live.412 Hence, we are
concerned with social arrangements for continued existence, not with those of a
suicide club.413 And hence there are certain rules and norms of conduct that any
society must contain if it is to be viable. They constitute a common element in the
law as well as in conventional morality and can be distinguished as different forms
of social control.
All the above would enable also the strict positivist to claim that every human
being has a moral and legal right to access to water, a right to be recognised by law.
The case for human rights is further substantiated by what Finnis has written.
406
Hart 1961, p. 182. Harts perception can be compared with Benthams characterisation of
natural law as nonsense on stilts.
407
It has also been pointed out that Hart used a hermeneutic approach in examining conduct
from the internal point of view of a groups members; cf. MacCormick 1998.
408
Hart 1955, p. 177. Moral rights should be distinguished from moral concepts as such.
409
Hart 1961, p. 181; cf. MacCormick 1981, p. 99: there is no single positivism v. natural law
question.
410
Ibid, p. 184.
411
Hart 1955. This article, written partly as an anti-war statement, boils down this natural right to
a claim for freedom in terms of choice, capacity and liberty. Although justified as rights applicable to each and everyone, Hart seems to have exempted conditions of extreme scarcity; with reference to Locke 1689, he thought that natural rights are only of importance where peace is possible, ibid p. 175, footnote 2. It is difficult to draw any conclusions in relation to drinking water
and water scarcity from this short note, though.
412
Hart 1961, pp. 186f.
413
Ibid, p. 188.
143
3.3.2 New (neo-) naturalism

In line with the view that law is an instrument to achieve social order, Finnis defines natural law as a set of principles of practical reasonableness in ordering human
life and human community (emphasis added).414 He holds that the principal concern of the theory of natural law and natural rights is to explore the requirement of
such reasonableness in relation to the good of human beings who, because they
live in community with one another, are confronted with problems of justice and
rights, of authority, law, and obligation.415 Sound laws are to be derived from unchanging principles, having their force from their reasonableness. And all this
translates into the vocabulary and grammar of rights (whether natural or legal).416
Like other new- (or neo-)naturalists, Finnis justifies law and rights not as being
eternal or divine,417 but by simply referring to the basic values and aspects of human well-being; the indemonstrable but self-evident principles which shape our
practical reasoning.418 Human rights are in the interest of each and everyone and
thus justifiable on the grounds of their instrumental value in creating the necessary
conditions for human well-being. Finnis, who draws on Aquinas virtue ethics, has
listed basic forms of good that are opportunities of being and of flourishing.419
Finnis is considered the pioneer in revisiting natural law and rights. In his seminal work, he writes that [a]lmost everything in this book is about human rights,
adding human rights being a contemporary idiom for natural rights: I use the
terms synonymously.420 Hart held that Finnis reflexive interpretation of natural
law as consisting of certain principles of practical reason for the ordering of
human life and society was in many respects complementary to rather than a rival
of positivist legal theory (emphasis added).421 Other prominent legal positivists
have agreed that natural law, in the revisited interpretations it has received more recently, is attractive. Proponents of the modern theory of natural law have in one
way or another confronted the extent to which moral issues should, or must, be
considered when constructing a proper descriptive theory of law.422
414
Finnis 1980, p. 280. He notes that English lawyers are not used to reasoning in terms of what
is and is not a matter of the law of nature; instead they frame their reasoning in that behalf in
terms of what is and is not against reason (i.e. unreasonable), p. 281, note 11.
415
Ibid, p. 351.
416
Ibid, p. 198.
417
Ibid, pp. 388ff., comments upon divine nature, the Augustinian and Thomistic speculation on
Eternal Law, etc, and writes that it should not be overlooked that the originators of natural law
theorizing, who did not suppose that God has revealed himself by any such act of informative
communication, believed none the less that through philosophical meditation one can gain access
to the transcendent source of being, goodness, and knowledge, ibid, p. 392.
418
Ibid, p. 81, referring to Aquinas first principle.
419
Ibid, pp. 86ff., 103.
420
Ibid, p. 198.
421
Hart 1983, p. 10.
422
Bix, p. 96. Apart from this, Bix holds that the nature of the claims related to modern natural
law are sometime less well articulated and obvious at least in comparison to traditional theo-
144
3.3.3 Summing up
To summarise the discussion in this section, the divide between natural law and legal positivism appears to have lessened during the past fifty-odd years: neither
school is any longer to be understood entirely as for or against the inclusion of
moral values into the understanding of law. Nevertheless, it is still commonplace
that proponents of legal positivism emphasise the distinction between valid law
and what is not valid law. This takes place in academia, within the UN system, and
in the courtroom. We will therefore look closer at the merging of thought in jurisprudence and in practice and at some more practical implications of this issue.
3.4 Practical implications of jurisprudential standpoints

3.4.1 The judge as law-maker
Despite what was held above about the discretion thesis and the role of interpretative judgments, the fact that law in common-law and mixed systems is partly judgemade poses a problem to the strict positivist. Each pronouncement of a precedent,
when the judge is not merely declaring existing law or interpreting the language of the
law and applying the valid set of rules, counters the order once defined by Austin:
that law is the command of the legislature (the sovereign of modern days).423
When the judiciary makes law, decision-making may also involve the taking of a
discretionary position and a moral stance. In both cases this also stretches the intended role of the court as the mere judicial power in the trias politica system, i.e. the
separation of the democratic states power into the Executive, the Legislative, and
the Judicial.424
In practice, the judge comes to the fore as a law-maker when existing sources
are few, i.e. there is no authoritative statement of the law, or else valid rules are
deemed inadequate or uncertain for solving the dispute at hand. Such absence of
applicable law is prevalent in the field of water rights in many parts of the world.
What, then, guides the judge in manufacturing a fresh legal rule?425 The outer
frame for decision-making consists of demands for consistency, predictability, efficiency, transparency and fairness in other words, the rule of law. There is no neat
and clean template for how to solve judicial problems, though, especially when
dealing with more complex cases. Edward Thomas points to empirical experience of
how a rule-bound approach has an irresistible appeal to many judges, as it appears
to provide certainty and convenient categories. But whenever there is a need to fill
ries, p. 100. Cf. Finnis, Dworkin and Fuller.
423
John Gardner, p. 214, contends that judge-made legal norms are no less posited than their enacted counterparts. This is acknowledged in the very idea that judge-made law is judge-made, i.e.,
is legally valid because some judge or judges at some relevant time and place announced it, practiced it, invoked it, enforced it, endorsed it, accepted it, or otherwise engaged with it (emphasis
in original).
424
The trias politica model was introduced by Baron de Montesquieu during the 18th century.
425
Dworkin 1978, p. 17.
145
out lacunae in law by making use of the traditional argumentation per analogiam, e
contrario and a fortiori (by analogy; contrariwise; and from stronger reason), the integrity of the judge or other decision-maker is put to the test.426 The process is designed to minimise the intrusion of the personal and potentially arbitrary values of
the decision-making judge, and to ensure predictability as far as possible. Thus far,
the legal process nonetheless has its deficiencies it is after all run by humans
and it gives leeway for deliberative reflections. Every time rules need to be extended or contracted, their incompleteness are confirmed, and if rules are incomplete, Thomas holds, they must necessarily also be uncertain.427
To what extent can moral, social values and norms then function so as to supplement the sources in deciding a matter? If Thomas is right that the process is designed to minimise the influence of values, we can compare with Dworkins attacks
on positivism. In doing so, Dworkin takes his point of departure in
the fact that when lawyers reason or dispute about legal rights and obligations,
particularly in those hard cases when our problems with these concepts seem
most acute, they make use of standards that do not function as rules, but operate
differently as principles, policies, and other sorts of standards. Positivism is a
model of and for a system of rules, and its central notion of a single fundamental
test for law forces us to miss the important role of these standards that are not rules
(emphasis added).428
Dworkin is critical of the narrow perspective upon what counts as legally valid law
and rules; of the positivist model which forces us to dismiss the legality and role
of standards and principles. Without going deeper into Dworkins theories, it is
enough here to state that his criticism applies also to the courtroom. In reality, lacking legislation, rules may actually constitute one (but one) decisive element. In addition, general principles can be applied and allowed to determine how to weigh and
balance the interests vested in a particular case. For instance, a maxim can replace
valid legal rules because decency so demands.429
A judge cannot effectually be made to fully ignore her/his personal morality
or those of other people and this might not even be desirable at all times. Such
values could thus manifest themselves via individuals within the judiciary, though
then probably in a rather ad hoc manner.430 The practical implications of natural-law
theories are therefore found mainly in common-law jurisdictions, the system of
426
Thomas, p. 86.
Thomas, p. 31.
428
429
Cf. Dworkin 1978, pp. 22-28. A typical example, according to Dworkin, is Riggs v. Palmer 115
N.Y. 506 = 22 N.E. 188 (1889) which concerned whether an heir, named in a will, could inherit
from the grandfather he had murdered. The legally-valid and binding statute regulating the making, proof and effect of a will could not be literally construed, according to the Court. Instead, a
fundamental maxim must apply: no-one should be permitted to profit from his own fraud; or acquire property by his own crime. The murdered did therefore not inherit his grandfather.
430
This is not to deny the legislatures possibilities to enact morally-based statutory law, after deliberate considerations of prevailing values.
427
146
which by definition provides for the judges law-creating power in courts run by
(one hopes) reasoning and reflective professionals. Mixed systems, where legal pluralism prevails,431 might be even more interesting in this regard.
In a system guided by common law, the doctrine of stare decisis (stand by decisions) also limits how far the court can go in its deviation from what is previously
established. This doctrinal rule circumscribes the discretion of judges, because judicial creativity has to be constrained in the interest of predictability and consistency.432 However, we can look at how the Indian Supreme Court has pronounced
that where creativity must prevail over consistency, it has the liberty to depart from
previous decisions under certain conditions, as explained in Sajjan Singh v. State of
Rajasthan (1965):
Though the Constitution is an organic document intended to serve as a guide to
the solution of changing problems[,] the Court should be reluctant to accede to the
suggestion that its earlier decisions should be lightheartedly reviewed and departed
from. In such a case the test is: Is it absolutely and essential that the question already
decided should be reopened. The answer to the question would depend on the nature of the infirmity alleged in the earlier decision, its import on public good and the
validity and compelling character of the considerations urged in support of the
contrary view (sic, emphasis added).433
It was also held in this case that a literal construction of the words used in a relevant provision of the Constitution cannot reasonably solve the problem of construing it. Much of the reasoning was reaffirmed in I.C. Golaknath v. Punjab (1967):
[I]n a progressive and dynamic society the character of these problems is bound
to change with the inevitable consequence that the relevant words used in the Constitution may also change their meaning and significance (emphasis added).434
Stability is thus sought after, at the same time as the court must concede change to
support the development of a dynamic society. Reasonableness is key, particularly
when the court is balancing competing interests of liberty and social control.
3.4.2 Discretion and morals
Let us picture a dispute which, having reached the court for settlement, is found to
be complex and involve issues not previously solved. Established rules and precedents give little direction, although the judge tries to relate to the intentions and
wider reasoning behind the law. The dispute concerns a scarce natural resource and
a balance needs to be struck between the interests involved: economic growth, development and extraction on the one side; and alternative use of the resource by
weaker groups and/or conservation on the other. New law must be made on the
matter brought before the court. How far can it go in its reasoning in this hard
431
The concept of legal pluralism will be discussed more at length in Chapter VII.
Sathe, p. 44. On judicial creativity, see below on PIL.
433
AIR 1965 SC 845.
434
AIR 1967 SC 1643.
432
147
case? Would the answer be different if it came from someone with an inclination
for natural law, and does natural law necessarily imply judicial activism?
Several scholars have opinions on the judges job in this context. John Gardner
reminds us that the law is seldom silent over gaps; there are closure rules such as
everything not forbidden by law is permitted by law.435 Dworkin describes as a key
tenet to which most though not all positivists supposedly subscribe that when a
case is not clearly covered by a rule, it must be decided by some official, like a
judge, exercising his discretion, which means reaching beyond the law (emphasis
added).436 We can assume that the notion of discretion means more than (good)
judgment as in common sense.
Gardner describes as a myth the notion that there could be a proper way of adjudicating cases, according to which judges should not have regard to the merits of
cases when deciding them; there is no obligation to apply only valid legal
norms.437 Hart was one of the old-school positivists to whom it was clear that
judges have and exercise discretion because of the open texture of law. Judges do
this within a delimited ambit as they are parts of a system the rules of which are
determinate enough at the centre to supply standards of correct judicial decision.438
In line with how Thomas argues above, Hart considered that judges make decisions
within a certain framework and do not deviate from this process.
Dworkin strongly contends that courts do not create any new rules, they only
apply pre-existing principles and standards and tend to discover and draw upon
already-established principles.439 What Dworkin might be thinking of is the application of reinvented and reinterpreted old maxims to hard cases, or a transplant of a
standard from e.g. the law on landed property to the law on immaterial property.
Several Indian precedents on environmental protection illustrate how both concepts and doctrinal principles are often borrowed from other jurisdictions, as the
examples below will show. This practice is a way of expanding domestic law, but
also of legitimising the judges own decisions by basing them on sources already
tested and accepted elsewhere. Such incorporation of legal concepts might be more
or less successful, depending on how well the foreign rule fits in with the legal system into which it is taken.
Nonetheless, new knowledge and more insights into our complex, highly interrelated modern society command fresh looks parallel with and maybe instead of
the eternal comprehensions of (the role of) law. Such approaches (rules, norms,
standards) might be partly discovered but they may also need to be invented and
pronounced or, in other words, created.
435
Gardner, p. 212.
Dworkin 1978, p. 17. He is strongly opposed to the idea, though, and holds that discretion in
the sense of judgment amounts to nothing but tautology, cf. ibid p. 34. It is easy to agree with
him, seeing arguments such as Greenawalts, pp. 16f., that moral judgment might be regarded as
the method judges use to decide how to exercise their discretion (emphasis added).
437
Gardner, p. 211, objecting towards Dworkins stance.
438
Hart 1961, pp. 141f.
439
436
148
To this may be added another aspect of discretion, viz. that the judiciary makes
use of its freedom to diverge from the sources when these are unfit, or fill out their
absence by balancing interests and take account of socioeconomic conditions as
well as moral values and social norms. Some scholars see it as desirable and even
appropriate that judgments sometimes involve moral dimensions. Kent Greenawalt
even argues that the serious discussion is about how often judges adopt moral elements and what elements dominate. Thus,
[t]he crucial question for legal positivism is how decisions of legal cases requiring
moral judgment can fit with the fundamental positivist thesis that law is posited, already declared, by human beings. One possible answer is that something is not law
until it is settled according to a social source, that, until judges resolve issues that
are not settled by the legal materials, there is a gap in the law that must be filled by an
exercise of discretion (emphasis added).440
It is interesting to compare this with what was held by Kania CJ of the Indian Supreme Court in a case concerning judicial review, among other things, in 1952:441
In evaluating such elusive factors and forming their own conception of what is
reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an
important part, and the limit to their interference with legislative judgment in such
cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of
thinking but for all, and that the majority of the elected representatives of the
people have, in authorising the imposition of the restrictions, considered them to
be reasonable (emphasis added).442
The Court had to take the citizens standpoint when evaluating the issues of liberty
at stake in the case and S.P. Sathe comments that the above quotation expresses
something quite at variance with the black letter law tradition of judicial process,
to which most of the Indian lawyers and judges were exposed through their legal
education.443 Being brought up in the British tradition, Indian judges seldom used
to admit their law-making role.444 There is much to indicate that the situation is under constant change, though. Rajeev Dhavan has written that an impetus for renewed
Indian scholarship was given by the exchange law programmes with the U.S. that
took place during the 1950s, in terms of funding, precedents, scholars and research.445 That this would greatly influence Indian legal training and, subsequently,
440
Greenawalt, p. 16.
Judicial review is the power of a court to oversee the actions of public-sector bodies and other
co-ordinate organs of government for their legality or constitutionality, i.e. that they exercise their
power within the limits drawn up by the Constitution.
442
State of Madras v. V.G. Row AIR 1952 SC 196, p. 200.
443
Sathe, pp. 43, 46.
444
Ibid, p. 43.
445
Dhavan, pp. xx f.
441
149
the way in which judges take impression from various American legal doctrines is
noticeable in the genesis of principles borrowed from outside the Indian system.
Fuller prefers to see law not as a one-way projection of authority, but as a collaborative enterprise and a process of interaction. In turn, this is a problem of interpretation and of maintaining legality. Interpretation of words as well as of interactional behaviour is significant for every aspect of the legal enterprise.446 It
is also a matter of language and communication, not only of determining facts and
the meaning of applicable rules. In modern democracies, a heavy responsibility
rests on those whose task it is to design and install the facility [of law].447 A good
decision by, e.g., a dispute-resolving judge would exemplify two interrelated qualities: a respect for systematic structure and an understanding of the social context
and the needs of the situation.448
3.4.3 Summing up
As shown in these sub-sections, the role of the courts and the judiciary as lawmaker is fundamental in all those instances when the legislator has not yet regulated
an issue. Where the legal sources are incomplete and/or their interpretation needs
improving, a judges discretion and value-system likewise enter the decision-making
process. The Indian Supreme Court allows itself considerable freedom and has time
and time again proved to be a champion of the peoples rights.
The judiciarys power to make new law is institutionalised as common law, following by virtue of the position that courts and judges have in society. This lawmaking power is a human construction, with imperfections and negative aspects attached; judges are influenced by and connected to the whole of society and its development, but may also stand for a conservative way of reasoning not fully in step
with contemporary views and sense.
A judge should make interpretations conscientiously, based on his or her authority.449 Theorising and conceptualising about the judges task of interpretation
risks being very abstract, though, partly because the actual reasoning behind the decision-making is obscured or at least not possible to pinpoint exactly. It is therefore
difficult to establish that discretion amounts to a judges intrinsic moral values, or
that a decision for instance is taken in accordance with community sentiment about
what is right and wrong. The theoretical discussion therefore makes way now for
the overwhelming question: what applies in practice?! After a survey of Indian jurisprudence, we look more closely at the way in which judges have reasoned in
some difficult cases.
446
Fuller 1969, p. 224.

Ibid, p. 223. Fuller was one of Harts most influential critics. His variant of natural law focuses
on social order and on regarding law as a facility enabling men to live and attain a satisfactory life
in common. Cf. Fuller 1958 p. 84, cited in Freeman & Lloyd, p. 124.
448
Fuller 1969, pp. 227ff.
449
Greenawalt, p. 18.
447
150
4 Features of Indian jurisprudence and practice

4.1
Introduction
The roots of Indian jurisprudence can be traced back to the time of 100 C.E., when
the teachings of Brahmin priests were compiled. Much but not all of traditional
Hindu and Islamic law was later supplanted by English common law as a result of
colonialism, so that Indian law and jurisprudence are now known foremost for
their English legacy. What was Hindu law literature is now rather a foundation of
philosophy (and theology).450 Transplantation of the English common-law culture
into the Indian legal system made a firm and lasting impact, something which becomes clear from reading the Supreme Courts decisions. The legacy is also shown
in the fact that the language of the administration and judiciary is English.
The Indian system does not subscribe wholly to the dominant Western understanding of law as informed by positivism. Instead, legal pluralism applies, meaning
that the system is an intersection of different legal orders, much like layers of juridical norms. In addition, religious, social and cultural norms as well as customary
practices prevail in parallel with the legal norms, at least in sections of Indian society such as in villages and among indigenous groups. Several aspects of this multifaceted and mixed legal system are relevant when analysing the countrys waterrights discourse and regulations.
In addition to the internal characteristics of Indias legal system, the import of
legal principles, measures and techniques has continued even after the influence of
English law ended with Independence. Rather, the extent of horizontal as well as
vertical borrowing451 of enviro-legal ideas has increased, a phenomenon that can be
referred to as diffusion452. Examples of both types are shown below.
As we will see, many court decisions on environment-related topics depict a
spiritualism that would possibly have been labelled nature romanticism in the West,
but which is to be understood against the highly religious society that is India.453
How far the judiciary gives expression to natural-law values in its reasoning is a
closely-related question, albeit not easily answered. The importance of basic human
values, practical reasonableness and moral principles is equally difficult to pinpoint.
There are scholars who hold that dharma (cf. next sub-section) and/or other ancient
philosophical and religious concepts are more central in the Indian system. For instance, the Vedic traditions of Hinduism link the power of the natural world with
gods, such as Ap, the god associated with water. The puja (worship) that is performed by millions of Hindus daily both employs and evokes these powers/gods.
Rivers have a sacred role in Hindu religious practice and have traditionally always
450
Glenn, pp. 273, 259.

Cf. Wiener.
452
Cf. Twining 2005a.
453
Cf. for instance the wordings in Attakoya Thangal v. Union of India (1990)1KLT 580 and F.K.
Hussain v. Union of India AIR 1990 Ker. 321.
451
151
been considered pure. Although modern industrial contaminants and human wastes
foul it badly, the Ganges still plays a very important role in Indias ritual life. 454
4.2 Dharma, religious values, and natural law

4.2.1 Dharma as a code of right behaviour
Several scholars assert that Indian environmental jurisprudence is quite unique, at
least compared with that in other common-law countries. C.M. Abraham has, for
instance, shown that awareness of autochthonous ancient and pre-colonial concepts relating to nature and environment protection can be and has been put to
productive use in the development of a modern regime of environmental regulation.455 Although this assertion applies to environmental law in general, water can
also benefit from reasoning along the lines of pre-modern notions.
Most interesting of all the religious and/or value-laden notions stemming from
pre-modern times is that of dharma, which is connected to Hinduism, Buddhism
and Jainism. It stands for righteousness, virtues, or the duties that are laid down
according to each individuals varna (caste). It is commonly used to denote a religious code of right behaviour and a divine system of morality. O.P. Dwivedi adds
that the term signifies the true and essential nature of any object.456 These norms
are codified in, among other writings, the Dharmastra the sacred text that defines and discusses right behaviour and the Manusmitri the Codex of dharmic
laws.457 The civil servants of the British administration (mis)took especially the latter
to be the law of the land for Hindus in India, had them translated to English, and
sought to apply some of them alongside the transplanted common law.458
The Manusmitri are no longer of any direct relevance to the Indian legal system,
but the Dharmastra are still occasionally referred to as an important source of
norms and obligations in family law, despite heavy criticism by feminists and dalits
for propagating a patriarchal, caste-based society.459 It has also been pointed out
that even these rules are administered in the common-law style; isolated from shastric techniques of interpretation and procedure.460
Abraham holds that the development of environmental jurisprudence in India
manifests neo-dharmic jurisprudence. It accommodates ideas and ideologies currently voiced by experts in international fora around the world for protecting the
environment, in forms modified by the Indian legal culture.461 Abraham has shown
454
Chapple.
Abraham, p. 3, cf. p. 135.
456
Dwivedi, p. 168.
457
A stra (or shaasthra) is a sacred and authoritative Hindu text or scripture, originally in Sanskrit. Dharmastra pertains to the concept of dharma, and dates back to between 600 B.C.E. and
200 C.E.
458
One of the more interesting accounts for this is given in Dhavan, pp. xiv f.
459
Cf. Menski 2004.
460
Nariman, p. 32.
461
Abraham, p. 142.
455
152
that Indias indigenous legal tradition is based on a specific understanding of the interlinkages of law, philosophy and religion, which is fundamentally different from
the positive law tradition prevalent in modern Western societies. It is also not the
same as the natural law tradition based on mere morals and values derived from religious beliefs.462 He contends that the ancient dharmic system relies much more
on the power of self-control than on externally enforced control such as regulating human conduct by way of sanctions.463
We can compare with how the Vashishta Dharmastra contains various rules of
conduct with built-in disincentives, such as that the intellect of a man perishes if he
voids urine against [in] water.464 Both Vashishta Dharmastra and Manu rule that
Brahmins (teachers, scholars and priests) and Kshatriyas (kings and warriors) who
take to trading in salt immediately become outcast; by selling milk they become
Shudras (here: servants) after three days. Interestingly enough, selling water is
equally prohibited for people of these two upper castes,465 but no internal sanction
is expressed in this case. Self-restraint is then ordered only by virtue of the scriptures weight.
As dharma does not approve the killing of animals, most Hindus used to be
vegetarians. Respect for living creatures is still widely practised, though many have
given up on vegetarianism. The importance of this dharmic aspect however shows
from the fact that compassion for living creatures is inscribed in the Constitution as
being a fundamental duty of every citizen (Art 51A(g)). Another central philosophy
of Manu and Dharmastra seems to have greater influence: pluralism in the sense of
religious tolerance is the bedrock of Indian secularism and a foundation of the
Constitution, as laid down in Valsamma Paul v. Cochin University.466
Dharma is only one side of human behaviour the other is the concept of
karma, which should be translated as action rather than meaning destiny. Each
act has a consequence that will always be with us and will create its own chain of
reactions. Environmental pollution, for instance, might not show immediately but
it is an a-dharmic action and will therefore result in harmful effects. Where one cannot possibly foresee the results of certain actions, one should either be ready to
face and overcome the resulting obstacles at some time in the future, or to suffer
the repercussions of ones actions.467 Hinduisms ideas of reincarnation and karma
directly affect the view of the environment and humanitys place in the world. They
lead to encouraging a life that does not pollute it.468
According to Werner Menski, the conceptual transition from dharma to law was
made more explicit from medieval times, but any law remained subject to the over462
Ibid, p. 85.
Ibid, p. 86.
464
Vashishta Dharmastra Part 1, Ch VI, para 11.
465
Ibid, Ch II, para 22-27; Manu Ch X, 92.
466
AIR 1996 SC 1011, para 25 = (1996) 3 SCC 545. Cf. Art 15(1) and 25 of the Constitution.
467
Dwivedi, p. 169, with references.
468
Fisher-Ogden & Saxer, p. 87.
463
153
riding concerns of dharma.469 This situation persists, to some extent, in personal

(family) law, but the current influence on environmental and water-related issues is
far from clear. Dwivedi holds, in abstract terms, that dharma can be used as a
mechanism to create respect for nature; moreover, it may serve as both a model
and an operative strategy for the transformation of human behaviour whence ecospirituality and stewardship can be developed.470 Christopher Key Chapple has noted
that dharma emphasises a need to act for the sake of the good of the world and
that this requires taking into account social ecology or the need to integrate environmental policy with the daily needs of tribal and other marginalized peoples in
cases such as the building of large dams along the Narmada River.471 As we know
from the outcomes of court cases pertaining to the same river, numerous dams
were built and many thousands of villagers displaced, though. No notice seems to
have been taken of anything like dharma, although the balance between different interests was described in some detail by the Court.472
It seems as if dharma can be referred to in court decisions today, though examples are hard to find. In K.M. Chinnappa v. Union of India & ors. (2002), which concerned mining in reserved forest land, the Supreme Court made lengthy obiter dicta
regarding how environmental law is an instrument to protect and improve the environment, and has to be subject to constant development [i]n view of the enormous challenges thrown by the industrial revolution. It was explained that in India, the historical situation is pertinent:
Since time immemorial, natural objects like rivers enjoyed a high position in the
life of the society. They were considered as Goddesses having not only the purifying capacity but also self-purifying ability. Fouling of the water of a river was considered a sin and it attracted punishments of different grades which included, penance, outcasting, fine, etc [E]nvironmental pollution was controlled rigidly in the
ancient time. It was not an affair limited to an individual or individuals but the society as a whole accepted its duty to protect the environment. The dharma of environment was to sustain and ensure progress and welfare of all. The inner urge of the
individuals to follow the set norms of the society, motivated them to allow the natural objects to remain in the natural state. Apart from this motivation, there was
the fear of punishment. There were efforts not just to punish the culprit but to
balance the eco-systems The noteworthy development in this period was that
each individual knew his duty to protect the environment and he tried to act accordingly (emphasis added).473
We see here how Justice Pasayat, similarly to Abraham above, opines that dharma relies on an internalised self-control an inner urge to which comes a fear of
punishment from the combined efforts of the outside world. The Justice further
469
Menski 2003, p. 30.

Dwivedi, pp. 169, 171.
471
Chapple.
472
Cf., foremost, Bandhua Mukti Morcha v. Union of India, 1984 SCC (3) 161 = 1983 SCALE (2)
1151 (some aspects of which are described further in subsequent chapters).
473
(2003) 2 SC 724, para 25.
470
154
spoke of everyones entitlement to welfare, and to the importance of respect for

ecosystems. There are also references to Manu and Rig Veda in the obiter.474 The Justice possibly meant that control of the environment was an easier task in ancient
times than in current because righteousness has now given way to fundamentally
altered codes of behaviour.
Despite the many references to dharma and various UN and other documents,
the Courts decision in Chinnappa was to allow continued mining in the reserved
forest area for a period of five years and no balance was eventually made between
environment and development.
It can also be noted that a report of the Indian Planning Commissions Expert
Group on groundwater management, published in 2007, reproduces a Water Prayer
from Rig Veda, and the way in which groundwater is depicted in Sanskrit literature
is presented.475 No further mention of those ancient concepts is made in the actual
report, though, and they seem to serve more as a poetic link to the past than as
containing a meaningful proverb for the present water management challenges.
Does dharma have a practical function in present India? On the topic of Ecological Perspectives from the Hindu Traditions, Vasudha Narayanan reminds the
reader that the even Dharmastra were only read and followed by Brahmins. Popular
practice and custom had as much weight, and moral tales and other notions of
dharma were communicated through, e.g., epic stories, routinely retold by family or
village elders.476 Clearly, an aspect that goes amiss in an urbanising, globalising society is the village elders role as the oral transmitters of dharmic behaviour.
Today, Narayanan holds, some Hindu institutions cite esoteric passages on
dharma to raise popular awareness of contemporary environmental and social issues.477 But as environmental disaster and not least water pollution is observable in
India, Narayanan explains that
Hinduism can be a source of complacency as well. Some Hindu values may impede ecological activism [I]n the Hindu hierarchy, Bhu-Devi/Prithvi (the Earth
Goddess) is of less importance than Sri/Lakshmi, the goddess of wealth and good
fortune. Lakshmi has traditionally had a far greater hold on peoples faith and aspirations than the Earth Goddess, and the quest for wealth seems to be more intense than reverence for the earth. In a world where good fortune seems to depend on consumer spending and industrial growth, the Earth Goddess faces some
very stiff competition.
474
Ibid, para 35, 38. The Rig Veda was probably composed between 17001100 B.C.E. and is one
of the worlds oldest religious texts in continued use.
475
Planning Commission 2007, p. vii, courtesy Prof R.N. Jha (no further reference given). Accordingly, many Sanskrit works describe the interior of the earth to be full of water channels, like
the veins in the human body and they claim that on the basis of certain plants and trees,
ground water resources can be explored in the areas where surface water is not available.
476
Narayanan.
477
Ibid. Narayanan also reminds of how gurus like Sathya Sai Baba can influence millions of devotees around the world by citing from texts on dharma. The guru and his Trust initiated and financed a Water Supply Project in 1994 including 750 villages without water.
155
There are other strands in Hindu religious traditions that have helped contribute
to the current ecological crisis. One is the Hindu conviction that rivers like Ganga
are so inherently pure that nothing can pollute them (emphasis added).478
Narayanan continues by quoting Anil Agarwal:

Hinduisms primary focus lies on the self, ones immediate family, and ones
caste niche, to the neglect of the larger society and community Whereas the private
sphere is carefully scripted in Hindu tradition, public life in India borders on and
often descends into chaos A Hindu may go down to the Ganges River to purify
himself or herself. The next moment, the same person will flush the toilet and
discharge effluent into the very same sacred river (emphasis added).479
The conclusion we can draw from these two writers is that the self-control originally imposed by dharma is seemingly directed towards other ends than preserving
the environment and water resources. Dharma should not be dismissed as a topic of
academic discussion only, but empirical studies would be needed to establish its
impact.
4.2.2 The discourse on religious and spiritual values
Apart from, or maybe rather than, reasoning in terms of dharma, general religious
precepts seem to play an important role for many lawyers and judges. For example,
(former) Justices Ashok A. Desai and Kuldip Singh express much concern and reverence for nature. Desai, in his book on environmental jurisprudence, takes a normative stance in that he prescribes a need for spiritualism and a return to Gandhian
and pre-colonial, even pre-historic, principles.480 Concepts of ethics and morals are
foundational for this approach, which must be characterised as detached from the
modern world. Justice Singh, in the Foreword to the same book, advocates a balance between the materialistic lives that modern humans lead, and the environment. He talks in terms of ethics, religious precepts, and that water is the life-line of
vegetation, which is in turn the source of human life; but also of the need for scientific understanding of the earths carrying capacity and the repairing cycle of the
ecosystem.481
Another person who has expressed his view in these terms is Advocate M.C.
Mehta. In an interview in 1998 he was asked whether he thinks that the Hindu tradition can increase environmental awareness, he answered in the affirmative, giving
the example that the worship of rivers such as the Ganges can help people to care
for the natural world as sacred. This is because we Hindus worship by our actions, whereas the West appreciates the need for clean water but does not have
the same deep feeling for rivers.482
478
Ibid.
A. Agarwal, p. 174.
480
A.A. Desai.
481
K. Singh, pp. xv ff. The foreword was written in the year after Justice Singh retired from the
Supreme Court.
482
Gosling, pp. 148, 150f.
479
156
4.2.3 The discourse on natural versus positivist law

Turning to the question of legal positivism and natural law, no clear assumptions
can be made here either. Few judges or scholars expressly advocate one or the
other stance. Two exceptions are Justice Markandey Katju of the Supreme Court and
Judge P.D. Dinakaran of the Madras High Court, who both have written on this
subject. Dinakaran, in defence of natural-law theories has held that the exclusive attachment to positive law is causing the rootlessness of modern civilisation. Law
must, therefore, be seen as relative to time and place in the same manner as moral
rights and wrongs are.483
Katju argues by pointing to how natural law can be seen as connected to revolutionary phases, when people feel oppressed by the positive law, and functions to fill
gaps in positive law at later stages when society is relatively stable. In the scientific
era, however, society requires precision and clarity and therefore more and more
positive, man-made laws.484 The revival of natural law as a reaction to the atrocities of the Nazi regime was only a temporary, emotional reaction, Katju holds, but
it collapsed because it had no scientific basis. He advocates instead a dynamic positivism to guide society: the law which utilizes the scientific discoveries of the laws
of nature and the laws of social development for the forward movement of man in
history.485
The perception of many academic scholars favours regarding water (in general)
as a natural right. Chhatrapati Singh was one of these, maintaining the elemental difference between the rights of the people and the rights of the state and that the
latter has unlawfully appropriated the rights of the former.486 In discussing natural
rights, C. Singh held that
[t]he fact that rights over water has existed in all ancient and modern legal times,
including in the traditional dharmasastras and Islamic laws, and also the fact that
they still continue to exist as customary rights in many contemporary societies,
clearly eliminates water rights as a creation of modern state made laws.487
The approach put forward can be characterised as anti-positivist: regulations enacted at federal or state level (and by the Crown in colonial times) are not considered legitimate when clashing with the rights of the people. However, the argument on natural rights was not advanced in detail, and it is therefore difficult to interpret what Singh meant. He also did not discuss whether or not all individuals in
the Indian society are equally entitled to claim the same kind of water rights. The
generalisations about water being a natural right are further at odds with how
groundwater is traditionally perceived. This will be dealt with in Chapter IX.
483
Dinakaran.
Katju 2000, p. 60.
485
Ibid, p. 59, cf. Katju 2001a.
486
C. Singh 1991 and 1992, with similar summaries on pp. 42 and 25, respectively. In these books
the bases of the peoples rights are alternately referred to as natural/human/customary/riparian
rights.
487
C. Singh 1991, p. 22.
484
157
A question that very few scholars have touched upon is how the Indian Constitution relates to natural law/rights. Whereas the natural-rights theory was important in shaping the contemporary text of the American Constitution,488 it has been
rejected that it also influenced the Indian Constitutions provisions on fundamental
rights (described below). T.K. Tope contends that
the framers of the Indian Constitution did not accept the theory of natural law
for the purpose of incorporating fundamental rights in the Constitution. Hence, it
would be incorrect to describe the fundamental rights inscribed in our Constitution as natural rights or inalienable rights. They are political and civil rights guaranteed by the Constitution (emphasis added).489
Nevertheless, it has been declared in several Supreme Court cases that the fundamental rights are natural rights embodied in the Constitution itself, for instance as
here by Chief Justice Bhagwati in landmark case Maneka Gandhi v. Union of India
(hereafter: Maneka Gandhi):
The natural law rights were meant to be converted into our constitutionally recognised fundamental rights so that they are to be found within it and not outside
it. To take a contrary view would involve a conflict between natural law and our
constitutional law. A divorce between natural law and our constitutional law
would be disastrous. It would defeat one of the basic purposes of our Constitution.490
Another scholar who has been against interpreting natural rights into the Indian
Constitution is Durga Das Basu. The American Constitutions Ninth Amendment
(which is part of the Bill of Rights) expresses that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people (emphasis added).491 Commenting upon this provision, Basu holds that
it
rests on the theory of inalienable natural rights which can by no means be lost to
the individual in a free society; the guarantee of some of them in the written Constitution cannot, therefore, render obsolete any right which inhered in the individual
even before the Constitution (emphasis added).492
In comparison, though, Basu explains that there is no such unenumerated right

under the Indian Constitution. No other (category of) right would thus be declarable as valid at least not with reference to some natural right or to the spirit
of the Constitution when the Supreme Court engages in constitutional interpre488
The American Declaration of Rights and Duties of Man, 1948, incorporates natural rights as
the basis of human equality.
489
Tope 1992, pp. 38f.
490
Maneka Gandhi v. Union of India (1978) 1 SCC 248. Cf. I.C. Golaknath v. State of Punjab AIR 1967
SC 1643; Kesevananda Bharati v. State of Kerala (1973) 4 SCC 225 = AIR 1973 SC 1461.
491
This Amendment is to be interpreted as barring denial of unenumerated rights, if such a denial
is based on [reference to] the enumerated rights in the Constitution, cf. United Public Workers v.
Mitchell, 330 U.S. 75 (1947).
492
Basu 2001, p. 83.
158
tation.493 However, it seems as if the expansion of the rights of individuals as enshrined under the Constitution proves him wrong. One of the fundamental rights
is Art 21 which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law (emphasis added).494 The provision is negatively formulated and addressed to the executive with the intention of
setting a limit to its interference with citizens. It thus regulates how the state must
refrain from applying its rights and powers against the people. In the case A.K.
Gopalan v. State of Madras, adjudged in 1950 and the very first involving judicial review, the Court took a highly positivist stance in the interpretation of the provision.
This approach was employed in cases where individual liberty was at stake, in order
to give the highest protection to individuals liberty claims. 495 A reference to the
spirit of the Constitution was given, but in another sense than Basu meant:
[W]e cannot declare a limitation under the notion of having discovered something
in the spirit of the Constitution which is not even mentioned in the instrument (emphasis added).496
The Judge gave a clear expression to the black-letter tradition prevalent at the time,
and thereby upheld the protection rendered against authorities intrusion.
Later, though, several Justices came to express recognition of natural rights in
interpreting Art 21.497 When deciding Maneka Gandhi in 1978, Chief Justice Bhagwati imported the common-law concept of due process,498 and the concept of
natural justice (which is closely related to the theory of natural law) was discussed
in detail. Criteria such as reasonableness, just, and anti-arbitrariness were employed to test the validity of procedural laws introduced by the legislature to deprive a person of her life or personal liberty.
Further, Art 21 was interpreted in this case with the effect of expanding its meaning. Accordingly, a positive right to life was developed from the negative wording of
the provision. Based on this, Tope delivers a slightly different view than Basus,
holding that trends in Supreme Court judgments indicate that the theory of unenumerated rights had been introduced into the Indian system.499 This meant, to begin
with, that by interpreting Art 21 liberally, it has come to provide a right to life, and
include the right to livelihood in efforts to protect human health and the environment. Several liberties previously unarticulated and only implied by Art 21 have
been recognised by the Court. As we will see, this development eventually led to
493
Cf. ibid, and Basu 1973, p. 91.

This fundamental right applies to a wider group than Indias citizens only, just as human rights
do.
495
Sathe, pp. 103f.
496
497
As is noted below, the case was decided after the State of Emergency that was declared by Indira Gandhi between 1975-77.
498
The concept exists also in the Swedish legal system, then known as rttskerhet.
499
Tope 1992, pp. 40, 274.
494
159
water being pronounced part of the right to life, and the states responsibilities in
terms of taking action have been laid down based on this right.
Though this and some following extensions of constitutional rights were coloured by a natural law-approach rather than a positivistic, the features of Indian law
cannot be characterised as consistent in this regard. For instance, if fundamental
rights are equal to, and supposed to lay down, natural, inalienable rights, it is remarkable that the constitutional right to property is no longer a fundamental right in
India it has been transferred to another part of the Constitution, with the effect
that the remedies for enforcement of this right are more limited.500 After Maneka
Gandhi, Tope commented that
the activist Judges are developing a new concept of natural law distinct from the
concept of natural law associated with rights to property (emphasis added).501
Tope later submitted that in the future, the Supreme Court might interpret the right
to property with the application of the theory of natural law, the concept of due
process and the theory of unenumerated rights.502 If Tope is actually correct in this
reasoning, it may have an impact on how a case on property rights in groundwater
is decided.
4.2.4 Summing up
That law is always culture-specific has been pointed out by many scholars in the
field of legal pluralism and socio-legal studies. One of these, Menski, maintains that
especially for lawyers it is necessary to
attempt at understanding how the ancient cultural and thus predominantly
socio-religious traditions of South Asia still manifest themselves today as centrally important legal bricks for the reconstruction of post-modern Hindu law
and the definition of post-modern Indian laws.503
At the same time, Menski, the comparative lawyer, feels compelled to deny the
role of classical Sanskrit texts as a direct legal source, but that is partly because
dharma and its related concepts are much wider than law in its narrow bureaucratic
sense.504 These concepts neither can nor should be understood in a positivistic
sense.
It remains unclear how far the dharmic system and religious values are influential
in contemporary India, and whether we need to understand these components in
order to discuss the role of law in context. Discernible from the case law that we
will study closer in Chapter VIII is that, rather than explicit references to ancient
500
Art 300A was introduced by the 44th Amendment in 1978. It states that no person shall be
deprived of his property save by authority of law, but a person who finds himself deprived can
no longer move the Supreme Court by invoking Art 32 or by Public Interest Litigation (more on
which below). Neither can the authority of law be challenged as unreasonable and arbitrary.
501
Tope 1988.
502
Tope 1992, p. 274.
503
Menski 2004, p. 3.
504
Ibid.
160
principles, many judges enunciate strong values and show solidarity with peoples
dependence on natural resources. This is not least true with regard to weaker sections of society, among whom legal illiteracy is widely spread.505
4.3 Fundamental rights and duties under the Constitution

The Indian Constitution contains a list of the human rights in Art 12-35, Part III
(the fundamental rights). These include the right to equality in Art 14; the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth in
Art 15; the right of free speech and expression in Art 19(1)(a); the mentioned right
to individual liberty in Art 21; the right to religious freedom in Art 25; and the
rights to constitutional remedies in Art 32-35.
Efforts to create a modern yet attuned constitution began after Independence
from the British, and the Constitution came into force in 1950. Building upon the
(British) Government of India Act 1935 and principles of the uncodified constitution of the U.K.,506 it is also influenced by principles found in the American, Canadian, Australian and Irish constitutions. The American Bill of Rights and the
French Declaration of 1789, with their ideals of liberty, equality and fraternity, have
also left clear marks on the part on Fundamental Rights enshrined in the Constitution. Similarly, the part on fundamental duties is in line with the Universal Declaration of Human Rights.507 The Indian Constitution now resembles the British but
there are important differences. Thus the Indian Constitution itself is supreme, and
Parliament is subject to it. This means that Indian courts can adjudicate on the constitutionality of any statute.
Katju has commented upon Indian human rights in comparison with their
sources of inspiration, writing in a harsh manner that
these rights were not a result of such prolonged social and political struggles and
social churning as happened in the Western countries. These rights were imported
from the West by our modern-minded Constitution-makers and then transplanted
from the above on our backward, semi-feudal society. The result is that while these
rights exist in the statute-book, many of them are ignored in many parts of our country, and that is because there was no long-drawn social struggle and social churning in our country for obtaining these rights (emphasis added).508
505
Cf. Bandhua Mukti Morcha v. Union of India 1984 SCC (3) 161 = 1983 SCALE (2) 1151.
The U.K. has a constitution which is not found in a single document but in several different
sources statutes, case law and international treaties.
507
Abraham, p. 14; Das Basu 2001, pp. 79f.
508
Katju 2003. He gives numerous examples, for instance that [n]o doubt, Article 15(1) of the
Constitution prohibits the State from discriminating against women, but it does not prohibit the
society from doing so, and in fact such discrimination is widespread, beginning from the very birth
of a child In recent years crimes against women have shot up, our courts are flooded with
cases relating to dowry deaths, rapes, wife-beating etc. and all this shows how backward our society still is (emphasis in original).
506
161
Katju continues by describing how [u]nderdeveloped countries like India are passing through a transitional age, between feudal, agricultural society and modern industrial society. The history of England and France shows what turmoil European
countries have gone through from the sixteenth up till the nineteenth century before modern society emerged, and India must undergo this transition as fast as
possible. One way is for the judiciary to help in this process.509
As mentioned, the procedure through which a person is deprived of his or her
life or personal liberty must be reasonable, fair, and just (Maneka Gandhi). Since the
end of the 1970s, the Supreme Court has strengthened Art 21. Two cases where
the positive right to a clean and healthy environment was laid down are Virender
Gaur v. State of Haryana,510 and A.P. Pollution Control Board II v. Prof. M.V. Nayudu
from 1995 and 2001, respectively.511 In the Virender Gaur case, which concerns
town planning, the Court observed that
there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative
duty to take adequate measures to promote, protect and improve both the man-made
and the natural environment (emphasis added).512
In A.P. Pollution Control Board II the Court observed that following Indias example513 there is building up, in various countries, a concept that the rights to a
healthy environment and to sustainable development are fundamental human
rights, implicit in the right to life. With reference to the International Covenant on
Economic, Social and Cultural Rights and the Rio Declaration,514 todays emerging
jurisprudence and collective, environmental rights as a third generation of rights
were discussed in the judgment, as well as the principle of Inter-Generational Equity.
A constitutional mandate to protect and improve the environment follows from
the Directive Principles of State Policy in Arts 47 and 48A, inserted by the FortySecond Amendment Act, 1976. The provisions are not enforceable by a court but
should be read together with Art 21, Art 14 on denial of equality before the law,
and Art 51A(g) on duty to protect the environment. Their function is to guide the
government, as policy prescriptions:
Duty of the State to raise the level of nutrition and the standard of living
and to improve public health. - The State shall regard the raising of the level of
509
Ibid.
1995 (2) SCC 577. The Supreme Court here held that the right to live a life in dignity encompasses within its ambit the protection and preservation of environment, ecological balance free
from pollution of air and water, sanitation, without which life cannot be enjoyed Environmental, ecological, air, water pollution, etc. should be regarded as violation of Art 21, pp. 580f.
511
(2001) 2 SCC 62.
512
Ibid.
513
The Court here referred to Bandhua Mukti Morcha.
514
UNCED 1992a.
510
162
nutrition and the standard of living of its people and the improvement of public
health as among its primary duties (Art 47).
Protection and improvement of environment and safeguarding of forests
and wildlife. - The State shall endeavour to protect and improve the environment
and to safeguard the forests and wildlife of the country (Art 48A).
When introduced in 1976, it was as a result of the involvement of the then Prime
Minister Indira Gandhi and Houses of Parliament in the issues of environment protection and development in the wake of the 1972 UN conference in Stockholm. 515
In addition, Art 51A(g) contains the Fundamental Duties of the Constitution:
Fundamental duties. - It shall be the duty of every citizen of India -
(g) to protect and improve the natural environment including forests, lakes, rivers
and wildlife, and to have compassion for living creatures (Art 51A).516
The list in Art 51A is not exhaustive, meaning that groundwater should probably be
covered as well as surface water in lakes and rivers. Art 51A is also interesting from
the Hohfeldian point of view. As a citizen, ones duties in relation to the environment are expressed in the Constitution whereas the rights are only indirectly pronounced, mostly as negative rights and as obligations on the State though on behalf of its citizens.
Together with Art 21, these provisions show proof of environmental values being recognised at constitutional level. They thereby satisfy the requirements for a
substantive right to a clean environment and for protection of natural resources to
sustain life. In addition, procedural rights have been developed to further benefit
the individual and the general public in the exercise of these rights, as will be discussed shortly. Again, this is due to the progressive development that has taken
place in the courts, denoted as judicial activism. This is what we will look at next.
4.4 Judicial activism and Public Interest Litigation

4.4.1 Introduction
The Indian context may at first sight appear to resemble that of other common-law
systems, but in fact subtle differences and quite unique characteristics underlie the
structure and content of the legal development. Not only has specific legislation on
environmental protection been enacted since the mid-1970s, but a new fundamental right to a clean and healthy environment has also been virtually created from
what the Constitution stipulates.517 Apart from this right, an obligation on the com515
Abraham, pp. 21f; UN Conference of the Human Environment, 1972.

Although Art 51A is not enforceable in court and not punishable as such, it was referred to in
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1987 SC 359 = 1986 (Supp.) SCC
517 for issuing an oral order stopping quarrying operations. It was reminded though this must
be interpreted as obiter dictum that preservation of the environment and keeping the ecological
balance unaffected is a task which not only Governments but also every citizen must undertake
as a social obligation.
517
Abraham, p. 1.
516
163
petent government agencies to enforce environmental laws has been deduced from
Art 21, and it has been ruled that such agencies may not plead non-availability of
funds, inadequacy of staff or other insufficiencies to justify the non-performance of
their obligations under environmental laws.518 Several legal tools for protecting the
environment have thus been adopted or developed and principles such as that the
polluter has a duty to pay are repeatedly held applicable. Undoubtedly, rights are
upheld by the courts while making the law, not merely interpreting the body of
statutory regulations in force.
Abraham emphasises that one element distinguishing Indian jurisprudence from
other comparable systems is that it bears testimony to the activist role of the Indian judiciary.519 It is clear that judicial creativity, or activism, has been of fundamental importance for the flexible interpretation of the fundamental rights and duties and, as noted, for the protection of peoples health as well as that of the environment. Much of this has been possible thanks to the development of public interest
litigation (PIL), or social action litigation as some prefer to call it to show that the
Indian phenomenon is different from the U.S. equivalent whence the concept
originally stems.520 In India, PIL was initially an approach relating to human rights,
but soon extended into realms of public law via judicial review of administrative action, and eventually came to shape environmental jurisprudence.521
In short, PIL can be described as a means developed to strengthen and ease the
possibility for concerned citizens to move the court without the numerous conventional and often very burdensome requirements for evidence, etc. Since it was introduced into the Indian legal system in the late 1970s,522 PIL has liberalised procedural paradigms and altered the role of the judiciary. The judges of these cases take
a new and more active role to make law and organise the court process, and remedial relief is often directed against government policies. The possibility of being acknowledged as a petitioner the person with the right to seek judicial action of
some sort is also widened an improvement in access to justice.
4.4.2 Access to justice and the judiciarys different role
The major rationale for the development of PIL was that it renders access to justice
and democratises the judicial process. Two advocates of the Supreme Court, Ashok
H. Desai and S. Muralidhar, argue that in a developing country, the legal process
518
Cf. Virender Gaur v. State of Haryana 1995 (2) SCC 577; Indian Council for Enviro-Legal Action v.
Union of India (CRZ Notification Case) 1996 (5) SCC 281; Dr. B.L. Wadehra v. Union of India (Delhi
Garbage Case) AIR 1996 SC 2969, p. 2976. The provision was inserted in the Constitution by the
Forty-Second Amendment Act, 1976.
519
Abraham, p 2.
520
For the latter term, see foremost Baxi 1989. On PIL I have foremost read Sathe, Desai & Muralidhar, Abraham and Razzaque, all of whom refer to yet other writers on this subject.
521
Cf. Abraham, p. 31.
522
According to Sathe, p. 46, even the first generation Supreme Court judges were conscious of
the activist role [that] the Court was destined to play under the Constitution, referring to the
judges sworn in after Independence.
164
tends to intimidate the litigant, who feels alienated from and even traumatised by
the system.523 The Court radically liberalised its procedures to facilitate access for
the common man and to increase public participation in the judicial process as a
means to control the other organs of government.524
Of larger practical importance, though, is the fact that the traditional rules for
dispute settlement in common law were fashioned for adjudication of disagreements between private parties over contracts, civil liability, property and similar issues. This was based on a couple of hypotheses: people were supposed to know the
law as well as their rights; and the judicial process was supposed to be the least desirable way of settling disputes used only when conciliation, negotiation, mediation, etc. had not worked. It was further postulated that the courts were to play a
passive role, also in matters of public law.525
In addition, in the adversarial common-law system, the law has to be pleaded in
the sense that the contending points of view are presented by each partys counsel,
and the valid precedents for or against an argument have to be submitted and distinguished in the same manner. The case also becomes framed by the pleadings of
the parties. This is a crucial difference compared with the civil-law system, where
there is no need for the parties to plead the law: the Court is supposed to know it
(jura novit curia) and give the necessary aid for the resolution of the dispute.
In PILs, however, judges often choose a more active role. Both the High Court
and the Supreme Court can adopt a more inquisitorial mode than in regular cases,
as they are not bound by the adversarial procedure usually prescribed as a method
of exposing evidence. PIL has no winners or losers and the mindset of both lawyers and judges can be different.526 Sathe writes that judges need not take a neutral
position but can examine complaints of violations of human rights, subversion of
the rule of law, or disregard of environment with greater care and through a proactive inquiry.527
An example of the Supreme Courts far-reaching possibilities is that it can order
a commission or expert committee to be formed to investigate and/or assess scientific data and help the court to form a prima facie opinion.528 This is of immense importance in environmental cases, where it is common that the petitioner lacks information and has limited access to relevant data. This also differs from the traditional procedure, where it is the petitioners responsibility to prove what is submitted and state all the facts of law. One expert body that has been appointed to submit reports at many instances is the National Environmental Engineering Research
Institute (NEERI).
523
Desai & Muralidhar, p. 3 and footnote 19.

Sathe, p. 195.
525
Ibid.
526
Desai & Muralidhar, p. 6.
527
Sathe, p. 207.
528
Razzaque, pp. 186ff; Desai & Muralidhar, p. 5; Sathe, p. 207. Order XXVI of the Civil Procedure Code, 1908, as well as Art 32 read together with Art 142(2) of the Constitution provide for
this.
524
165
What brought about this procedural relaxation? Tope has written that in the
sphere of political as well as economic and social rights, the activist judges of the
Supreme Court evolved a new Indian jurisprudence, described as judicial lawmaking. This creative attitude was necessary for the interpretation of a dynamic
constitution such as that of India.529 Sathe holds that the situation changed with a
transition in India from a laissez-faire state to one subscribing to values of welfare,
and in line with the Indian courts undertaking of the function of judicial review. In
judicial review, courts are to prevent illegalities on the part of the government and
protect the liberty of the individual. Hence,
[t]he Supreme Court of India has been evolving its own paradigm of public law
adjudication by making a number of innovations quite unorthodox in traditional
legal theory. The incorporation of a bill of rights in the Constitution and the vesting of special responsibility for protecting the rights on the courts must have inspired
the courts to be less technical and more informal (emphasis added).530
One innovation that has been highly relevant regarding environmental and waterrelated questions is that the normally strict rules on standing (locus standi) were
gradually relaxed. This has meant that people previously unable to show that they
were adversely affected or that their own rights were violated could also move the
court. Moreover, public-spirited individuals and NGOs could further group interests, especially on behalf of the poor and the (legally) illiterate.531
As seen, several commentators emphasise PIL and judicial activism as unique
for India. Indeed, the countrys whole legal system and current positions of various
rights and obligations would be completely different and deemed less successful
had not the PIL phenomenon altered the common-law tradition. What is interesting here is that the growth of PIL in India illustrates how courts can be an arena
for progressive development, parallel to and sometimes to a higher degree than
NGOs/civil society and ordinary interest groups.
Regarding access to justice and the active judiciary, one should bear in mind that
actual persons are devoting themselves to achieving results. Tope mentions some
of these, describing their attitude as influenced by radicalism and insurgency. He
quotes D.P. Madon, a former Justice of the Supreme Court, as saying that [a] Judge
who denies to himself judicial activism, denies to himself the role of a judge. Nature abhors a vacuum. Take away judicial activism and tyranny will step in to fill the
vacant sphere.532
Certain key players have been involved in driving and deciding cases on matters
such as the protection of water and other natural resources, and peoples access to
these. Advocate M.C. Mehta is one whose importance cannot be overestimated.
Further, Shyam Divan wrote in 2002 that not long ago, there was a phenomenon
called Justice Kuldip Singh, who blazed across the front pages of newspapers: shut529
Tope 1988.
Sathe, pp. 196f.
531
Ibid, pp. 201ff.
532
Tope 1988.
530
166
ting down polluters near the Ganga and the Taj, preventing construction along the
coast, and restricting vehicular emissions in Delhi.533 Singh was involved in a number of precedents in the middle of the 1990s, but retired from service in 1997. Others have proved equally invaluable to the cause of environmental justice, access to
water, etc. However, this also proves the importance of individuals who function as
driving forces and how little happens in the absence of such people. For instance,
Kuldip Nayar pointed out already in 1999 that it appears that several of Kuldip
Singhs judgments are being undone.534 Judgments that are perceived as too progressive or which go against powerful interests are likely to be left unenforced or
overruled later on. The matter of corruption in the judiciary is, of course, also a
problem difficult to pinpoint but very often referred to in the debate and among
the general public. It is everyday reality and a contributing reason why certain advocates and judges decisively counteract the bad reputation which the judicature by
and large has (and which appears in how the word lawyer is often pronounced as
liar).
4.4.3 Directions issued by the Court
The Supreme Court has the power to issue directions, orders, or writs under Art
32(2), for the enforcement of any of the fundamental rights conferred by the Constitution. This provides the Court with the necessary means to make the abstract
declarations of fundamental rights effective: the rights are thus not only tested in
court, but can be vindicated. Similarly, duties of the public authorities can be enforced: the executive as well as the legislature can be compelled to obedience. A
procedure brought under this provision is described as a constitutional remedy,
and the right to bring such a proceeding before the Supreme Court is itself a fundamental right (Art 32(1)). In a PIL, this right can be invoked by the aggrieved public; the right to be heard is thus widened. The High Courts have the same, and
even wider, jurisdiction under Art 226. This provision is applicable not only for the
redress of fundamental rights; but it renders no guarantee of being heard. In short,
the Supreme Court and the High Courts have concurrent jurisdictions in regard to
enforcement of fundamental rights.535
What Art 32(1) means for individuals was expressed in Subhash Kumar v. State of
Bihar (hereafter: Subhash Kumar):
If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution.536
The fact that the courts can issue directions to, e.g., control pollution and against
impairment of the quality of life means not only that there is a material right im533
Divan.
Nayar. The clearest evidence should be the way in which the decision in Jagannath v. Union of
India (1997) 2 SCC 87 = AIR 1997 SC 811 was stayed by a Bench as soon as Singh had retired,
Divan & Rosencranz, p. 495.
535
Basu 2001, pp. 125ff, 312; Divan & Rosencranz p. 129.
536
(1991) 1 SCC 598, para 7.
534
167
plied in Art 21 it also confers a procedural right for citizens to move the Supreme
Court. Correspondingly, the Court pronounced in Bandhua Mukti Morcha v. Union of
India, 1983 (hereafter: Bandhua Mukti Morcha), that the state is under a constitutional obligation to see that there is no violation of fundamental rights, particularly
in regard to the weaker sections of the community that are unable to wage a legal
battle against a strong and powerful opponent.537
Muralidhar explains that the enforcement of a court order depends largely on
the nature of the judgment. Where there are no mandatory directions but only a
declaration, the wait for further action can be long. For instance, the declaration on
the states constitutional obligation in Bandhua Mukti Morcha as cited above is legally
binding but depends on acceptance by the state and its authorities under Art 141
and 144 for its implementation. Mandatory orders, on the other hand, can spell out
a plan of action as well as a time schedule within which compliance with the order
is expected. In the case cited, the Court also issued a series of directions for compliance by the state authorities.538
4.4.4 The Judiciary, the Legislature and the Executive
No strict doctrine of separation of powers applies under the Indian Constitution
but a traditional system of checks and balances is envisaged, according to which the
judiciary enforces the law, and the executive and the legislature have policy-making
and implementation as their exclusive, respective domains.539 The judges philosophy was once possibly that of judicial restraint towards the legislature, which was
supposed to be a popular body consisting of the representatives chosen by the
people through a free and fair election.540 If most of the initial PILs were matters
of human rights, a shift to issues of good governance and public accountability,
and towards prevention of government lawlessness, has been visible since. Instances of corruption (scams, bribes, speed money, irregular exercise of discretion, etc.) and sustenance of the rule of law have been subject to review. 541 Frustration is often pronounced, such as when the Court has remarked that [w]e have our
doubts whether the above quoted Government order is being enforced by the
Government;542 and expressed regret that the authorities responsible for the implementation of various statutory provisions are wholly remiss in the performance
of their duties under the said provisions;543 noted that despite several Court decisions, the required attention does not appear to have been paid by the authorities
concerned to take the steps necessary for the discharge of duty imposed on the
537
1984 SCC (3) 161 = 1983 SCALE (2) 1151.

Muralidhar, p. 3.
539
Desai & Muralidhar, p. 12; Fertilizer Corporation Kamgar Union v. Union of India (1981) 1 SCC 568,
p. 584.
540
Sathe, p. 46, drawing from reflection on State of Madras v. V.G. Row AIR 1952 SC 196.
541
Sathe, p 219; Desai & Muralidhar, p. 11.
542
Vellore Citizens Welfare Forum v. Union of India, para 21.
543
S. Jagannath v. Union of India AIR 1997 SC 811, para 47.
538
168
State Any further delay in the performance of duty by the Central Government
cannot, therefore, be permitted.544
In addition, a large proportion of the PILs that concern environmental questions have been cases against state inaction or wrong action. The courts have here
been engaged in making law filling gaps and legislative vacuums as well as laying down new policy; but also prodding the government into implementing environmentally safe measures in order to curb pollution (emphasis added).545 The Supreme Court is therefore seen as an institution that formulates policy which the
state must follow.546
The orientation of a PIL is prospective, and sometimes implies continuing judicial involvement in supervising the implementation of the order even after issuing
it, thus intervening in actions taken by the executive offices. Many court decisions
on water-related questions and disputes are more of the kind that directs the competent authorities in their tasks. This was seen in Indian Council for Enviro-Legal Action v. Union of India (the Bichhri case), concerning a chemical industry that had discharged, among other things, untreated toxic sludge, rendering some seventy wells
used by about 10,000 residents useless. The regulatory agencies had not fulfilled
their tasks of mitigating the environmental damage.547 The scope of the applicable
legislation the Environment (Protection) Act, 1986 was thus examined by the
Court in order to decide whether remedial measures could be directed:
Section 5 clothes the Central Government (or its delegate) with the power to issue directions for achieving the objects of the Act. Read with the wide definition
of environment in Section 2(a), Sections 3 and 5 clothe the central Government
with all such powers as are necessary or expedient for the purpose of protecting
and improving the quality of the environment.
The Central Government is empowered to take all measures and issue all such directions as are called for the above purpose. In the present case, the said powers
will include giving directions for the removal of sludge, for undertaking remedial
measures and also the power to impose the cost of remedial measures on the offending industry and utilize the amount so recovered for carrying out remedial
measures. This Court can certainly give directions to the Central Government/its delegate to
take all such measures, if in a given case this Court finds that such directions are
warranted (emphasis added).548
Hence the mere fact that the Central Government has rights and responsibilities to
act under a certain statutory act does not prevent the Court from issuing its own,
concrete directions when it perceives this as necessary.
Another result of PILs is that the courts order that new authorities or bodies
should be set up. Thus the Supreme Court has several times suggested that envi544
M.C. Mehta v. Union of India (1998) 9 SCC 589, p. 590.

Desai & Muralidhar, p. 11.
546
Ibid, p. 1.
547
(1996) 3 SCC 212 AIR 1996 SC 1446; cf. Divan & Rosencranz, p. 74.
548
The Bichhri case (1996) 3 SCC 212 AIR 1996 SC 1446, p. 1464.
545
169
ronmental courts be set up on a regional basis.549 In Vellore Citizens Welfare Forum v.

Union of India (hereafter: Vellore Citizens) it was noted that the main purpose of
the Environment (Protection) Act was to create competent authorities with the
purpose of controlling pollution and protecting the environment. Ten years after
the Act had come into force, no such authority had been instituted by the Central
Government, with the effect that the work required to be done by such an authority is being done by this court and other courts of this country. The following direction was hence given:
The Central Government shall constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986 and shall confer on the said authority all the
powers necessary to deal with the situation created by the tanneries and other polluting industries The Authority shall be headed by a retired judge of the High
Court and it may have other members preferably with expertise in the field of
pollution control and environment protection to be appointed by the Central
Government. The Central Government shall confer on the said authority the
powers to issue directions under Section 5 of the Environment Act and for taking
measures with respect to the matters referred to it (emphasis added). 550
As a consequence of the Courts order in M.C. Mehta v. Union of India (the groundwater case), the Central Ground Water Authority (CGWA) was constituted under
Sec 3(3) of the Environment (Protection) Act.551
In Vellore Citizens, the Chief Justice of the Madras High Court was furthermore
requested to constitute a special Green Bench to deal with this case and other environmental matters.552 In S.K. Garg v. State, Judge Katju directed the government of
Uttar Pradesh to set up the Allahabad Water Committee, with a certain chairman
and eleven named members, to solve the problem of providing citizens with their
rightful water. This Committee, it was further directed, should consider and decide not only the immediate remedial steps which can be taken in this connection
but also the long term remedial steps.553
According to Sathe, the strict positivistic distinction between that part of the
courts decision which is the binding ratio decidendi and the non-binding obiter dicta
has become inconsequential in respect of constitutional law litigation in general
and PIL in particular. This is seemingly because law-making via issuing of directions is overtly legislative and considered binding not only by the Court and the
subordinate courts but also by the governments and the social action groups (em549
M.C. Mehta v. Union of India AIR 1987 SC 965; the Bichhri case.
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, para 24.1. A similar order was
later issued in Jagannath v. Union of India (the Shrimp Culture case).
551
M.C. Mehta v. Union of India 1997 (11) SCC 312. The function of the Authority is to assess,
regulate and control the development and management of Indias groundwater resources. The
main task has been the listing of 839 over-exploited and 226 critical assessment units and the
issuing of prohibitions to construct new groundwater structures in the notified areas. The Authority complements the Central Ground Water Board (CGWB) which is still in existence.
552
Ibid, para 25.
553
AIR 1999 All. 41, para 9-10.
550
170
phasis added).554 The effect of the Courts decisions has thus widened much beyond
the doctrine of stare decisis.
From the above it is easy to agree when the Indian Supreme Court is described
as a political institution with a form of power, both in theory and in practice, unknown elsewhere.555 Its judicial activism and PIL have, however, also been criticised.
4.4.5 Critique of PIL
PIL has been much criticised for being everything from arbitrary to populist.556 For
instance, Sathe holds that
it is populism when doctrinal effervescence goes beyond the institutional capacity of the judiciary to translate the doctrine into reality and it [is] excessivism when
a court undertakes responsibilities that should normally be discharged by other
co-ordinate organs of the government.557
The line between activism and something else is, in other words, a matter of fine
balance. A tendency among the courts in PIL cases is that they interfere and act
unpredictably, with insufficient respect for the written law.558 Several commentators also note that decisions tend to be based upon the personal predilections of
judges,559 and that [w]e see unequal application of the rules of the locus standi and
justiciability depending upon the personal inclinations of judges or the circumstances in which the petitions are heard.560 Certainty of both substance and direction for the next step forward in the further progress of the law is nevertheless
indispensable, as was held by the judge in one of the first PILs.561
Another problem with this system of judge-made law is that officials might
await interpretation, or simply avoid complying with requirements until the court
issues directions. The parties to a PIL also often return to the court for fresh directions and orders. Similarly, Indian governments appear to have lost confidence to
enforce any law in the absence of a judicial decision.562 As of recently, PIL seems to
be used for sorting out both political controversies and private grievances more
than dealing with genuine human rights issues, and some decisions are of little
practical use as they cannot be implemented effectively.563
554
Sathe, p. 240.
Gadbois, pp. 250f., cited in Abraham, p. 33.
556
Cf. Abraham, pp. 32f; Desai & Muralidhar, pp. 9, 12ff; Sathe, pp. lxxiv-lxxvii, 246ff., with references.
557
Sathe, p. 100.
558
Nayar.
559
Nayar; cf. Desai & Muralidhar, p. 15.
560
Sathe, p. 223.
561
Bandhua Mukti Morcha v. Union of India 1984 SCC (3) 161 = 1983 SCALE (2) 1151, p. 234.
562
Sathe, p. lxxv.
563
Desai & Muralidhar, p. 15; Sathe, pp. lxxiv-lxxv. For instance, bans on smoking in public can
be implemented only with great difficulty.
555
171
4.4.6 Summing up
PIL represents a new paradigm of liberalised public law process based on an active
judiciary acting as a legislator as well as an institution to guarantee human rights
and access to justice. For interpreting and protecting the right to water, the Indian
PIL has been both essential and unparalleled.
We now look at some more concrete examples of environmental jurisprudence
principles of importance also in regard to water and how these made their way
into the Indian context.
4.5 Borrowing and developing principles

4.5.1 Sustainable development, etc.
The above-mentioned PIL and Supreme Court decision in Vellore Citizens exemplifies how rules and concepts can be imported.564 The case deals with hazardous effluents discharged without proper treatment from numerous tanneries, rendering
both groundwater and surface water in 59 villages unfit for drinking. Although the
authorised Central Pollution Control Board had stipulated standards, these were
not met; neither were standards laid down in the Water (Prevention and Control of
Pollution) Act or the Environment (Protection) Act. Moreover, several previous
Court and Government orders on this matter had been left unimplemented. The
problem was hence not primarily one of lack of rules to be applied. Nonetheless,
the case is referred to for its precedential value, and shows how Indian law has
progressively been expanded and filled with new meaning. This is because the
Court established that the traditional view of development and ecology [as] opposed to each other, is no longer acceptable. Sustainable Development is the answer
Some formulations in the case deserve to be discussed, though. The Court in its
reasoning mentioned the concept of sustainable development as an acknowledged
part of international law, though [its] salient features have yet to be finalised by
the International law Jurists.566 It is unclear why the Supreme Court of India
thought it a task for international jurists to specify and finalise the substantial content of the concept when, for instance, the intention of the Rio Declaration is that
state governments should implement and integrate its principles into their national
legal systems.567
564
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715.

Ibid, para 10.
566
Ibid.
567
Patricia Birnie & Alan Boyle, p. 46, rightly point out that [s]ustainable development requires political action if it is to be implemented, and it may be easier to deliver in certain systems than in
others.
565
172
It is also unclear why the Court concluded that sustainable development is customary law. Customary law (or customs568) is generally accepted as a binding
source of international law. There is no clear-cut definition of the term and different scholars give slightly different versions. Two conditions must be fulfilled for a
legally-binding custom to prevail: that it is observed repeatedly over time by a significant number of relevant actors (the criterion of state practice); and that a sense
of obligation is involved (opinio juris). The latter criterion can be described as a feeling of being legally obliged to behave in a certain way. The custom is thus followed
by those concerned because they consider it to be law.569 Because the criteria are strict,
very few legal scholars see sustainable development as a binding rule of customary
international law. At least three things speak against it: the term is both abstract and
non-standardised as to its content; it is a concept rather than a legal principle and
lacks norm-creating character; and inconsistent conduct is routine in the international community.570 Instead, the concept of sustainable development is a typical
example of non-binding soft law.571 The Indian Supreme Court was, naturally, free
to introduce the concept into the legal system nonetheless.
How, then, did the Supreme Court understand this concept in the (perceived)
absence of international law specifying its salient features? A part of the answer
lies in that the Court in Vellore Citizens also declared that the precautionary principle
and the polluter pays principle have been accepted as part of the environmental law
of the land.572
It is not easy to follow the Courts reasoning when it seeks to substantiate this
assertion, though. After a general account of the contents of Arts 47, 48A and
51A(g) of the Constitution, and of the statutory Acts for protection of water, air
568
What is legally defined as customary law is often called custom. The concepts are discussed
further in connection with water rights in Chapter VII and X.
569
Birnie & Boyle, pp. 16f., hold that [b]oth conduct and conviction on the part of the state are
required before it can be said that a custom has become law It is, however, becoming increasingly difficult, in a world of over 190 states of diverse cultures, policies, interests, and legal systems to identify universal practice [It] involves examination not only of states authoritative
statements, unilateral and multilateral declarations, agreements, legislative and other acts, and actions in international organizations. The International Court of Justice (ICJ), whose observations are only binding on the parties of each dispute adjudged by it, applies international custom
whenever it can be determined to be evidence of a general practice accepted as law (emphasis
added), Art 38(1)(b). The ICJ has held that there is no specific time limit during which the practice must exist before it can be regarded as a customary rule. Instead, this depends on the subject
matter of the rule, the nature of state practice and the extent to which it is observed.
570
Cf. Birnie & Boyle, p. 13.
571
Nevertheless, cf. Philippe Sands, p. 254: There can be little doubt that the concept of sustainable development has entered the corpus of international customary law, requiring different
streams of international law to be treated in an integrated manner. Sands refers to the Case Concerning the Gabkovo-Nagymaros Project, decided by the ICJ in 1997, in which the Court notes the
concept of sustainable development.
572
Vellore Citizens, para 10.
173
and the environment,573 it is stated that [i]n view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law
of the country.574 However, these Acts contain only two substantial provisions
each (Arts 24-25 of the Water Act; Arts 21-22 of the Air Act, and Arts 7-8 of the
Environment Act). The remainder are of administrative and procedural character,
providing for, among other things, the establishment and functioning of Pollution
Control Boards. The Court refers to the fact that the Water Act prohibits the use
of streams and wells for disposal of polluting matters without obtaining consent
from the Board. To expand the meaning of this one provision in order to lay
down that the precautionary principle and the polluter pays principle are part of the
positive, valid body of law is quite remarkable. This was probably not what
Dworkin had in mind when claiming that courts do not create any new rules; they
discover and draw upon already established principles. We can instead see how the
Court made use of its discretionary power for the benefit of introducing principles
from other (countries) sources.
Another interpretation is likewise liberal but slightly odd: the Court held that
[t]he Constitutional and statutory provisions protect a persons right to fresh air,
clean water and pollution free environment, but the source of the right is the inalienable common law right of a clean environment (emphasis added). After quoting
Blackstones Commentaries on the Laws of England it is stated that
[o]ur legal system having been founded on the British Common Law[,] the right
of a person to pollution-free environment is a part of the basic jurisprudence of
the land.575
It is interesting to note here that in the passage quoted from Blackstone, he in turn
refers to the ancient (moral) maxim sic utere tuo, ut alienum non laedas (use [what is]
yours so as not to harm [what is] of others also known as good neighbourliness
or the no harm principle). This maxim is nowadays generally thought of as a principle of international customary law, although questioned by some. Here, the Supreme Court used it to show the law on nuisance of 1876. Again, the Court was
free to support its borrowing of foreign principles by equally foreign sources, but as
of now the Court omits to mention other applicable bases for its claim, especially
more up-to-date sources from which a right to a pollution-free environment has
been or can be deduced. For instance, the Courts own precedents in Subhash Kumar
and Virender Gaur could have been expanded.576 For these reasons, it is difficult to
see Vellore Citizens as a sound precedent.
573
The Water (Prevention and Control of Pollution) Act, the Air (Prevention and Control of Pollution) Act, and the Environment (Protection) Act.
574
Vellore Citizens Welfare Forum v. Union of India, para 12-13.
575
Ibid, para 16.
576
AIR 1991 SC 420, p. 424; 1992 (2) SCC 577, 581, para 7.
174
4.5.2 The Public Trust doctrine

Another important case, showing how principles and doctrines from foreign jurisdictions have been developed in Indian law, is M.C. Mehta v. Kamal Nath (a.k.a. the
Span Motels case, hereinafter: Kamal Nath) from 1997.577 It deals with a dispute
over the natural flow of a river that had been interfered with by efforts to block its
course, in order to reclaim seasonally flooded land. The case is mostly known as the
precedent in which the Supreme Court referred to the Roman doctrine of Public
Trust, and declared it part of the law of the land.578
The Public Trust doctrine is the legal principle that certain resources are preserved for public use, and that the government is required to maintain them for the
publics reasonable use. It has its origin in the Roman Empire at the beginning of
the fifth century C.E. and was later codified into English common law. The doctrine is based on the need to protect the publics right of access to certain resources. The doctrine lays down the pre-existing rights of the state: It holds domain
and sovereignty over all shorelands and navigable water. The state, as a trustee,
could however not grant exclusive rights to these resources to any single individual
or entity. The state furthermore has duties: to administer such lands and waters to
maintain the flow in the rivers as well as the publics right to fishing and navigation.
This applies along with the rights of landowners, who were traditionally granted full
private ownership of their water bodies and shorelands, with an accompanying
right to sell these rights.579
Joseph Sax, who is credited with having created a new doctrine with his article on
the Public Trust doctrine in 1970,580 found it to apply to natural resources (mineral
or animal) contained in the soil and water over those public trust lands.581 It was
upheld by the Supreme Court of California in the so-called Mono Lake case in
1983,582 wherein the Court held that the public trust is an affirmation of the duty
of the state to protect the peoples common heritage of streams, lakes, marshlands
and tidelands. Accordingly, the state would have to consider the public trust when
allocating permitted withdrawals of groundwater.
In Kamal Nath the judges built up a reasoning to substantiate the jurisprudence
of the case. They explain why the Public Trust doctrine is a part of the Indian legal
system. They begin:
The notion that the public has a right to expect certain land and natural areas to
retain their natural characteristic is finding its way into the law of the land (emphasis
added).583
577
M.C. Mehta v. Kamal Nath 1997 (1) AD SC 1 = (1997) 1 SCC 388.

Ibid, para 24-35.
579
Sax 1970.
580
Ibid.
581
Ibid, cf. Sax 1990, pp. 269ff.
582
National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983).
583
M.C. Mehta v. Kamal Nath, para 23.
578
175
To support this, the Court initially refers to doctrinal writings from two scholars.
The (rather famous) quotation from ecologist Barbara Ward shows how the judges
are concerned with the ecosystem imperative:
[T]oday the morals of respect and care and modesty come to us in a form we
cannot evade. We cannot cheat on DNA. We cannot get round photosynthesis.
We cannot say I am not going to give a damn about phytoplankton. All these tiny
mechanisms provide the preconditions of our planetary life. To say we do not
care is to say in the most literal sense that we choose death.584
The Court comments on this by recalling a commonly-recognized link between

laws and social values, a balance that to the ecologist (presumably)
is not alone sufficient to ensure a stable relationship between humans and their
environment. Laws and values must also contend with the constraints imposed by
the outside environment. Unfortunately, current legal doctrine rarely accounts for such
constraint, and thus environmental stability is threatened (emphasis added).585
A clear stand is taken in the perception of law and the respective roles of the legislature and the courts. Unlike our laws, the laws of nature cannot be changed by legislative fiat, sums the Court, and therefore they must inform all of our social institutions.586 The approach that our laws ought to develop and improve, based on objective observations and scientific insights into natures limits is in line with what
Justice Katju prescribed for the Indian legal system.
It is further held that where there is law made by the ordinary legislator, the
courts can serve as an instrument for determining its intent, thereby exercising their
power of judicial review. But in the absence of any legislation, the executive, which
is acting under the doctrine of public trust, cannot abdicate responsibility over the natural
resources and convert them into private ownership.587 The Court also gave expression to several value-laden matters. For instance, it concluded at an early point that
[t]he area being ecologically fragile and full of scenic beauty should not have been
permitted to be converted into private ownership and for commercial gains (emphasis added).588
This statement is somewhat remarkable, considering that it precedes the analysis of

what legal rules are applicable in the case. It should possibly be read in conjunction
with a sarcastic comment about the defendant:
It may be mentioned that Mr Kamal Nath was the Minister-in-charge, Department of Environment and Forests at the relevant time It is only in November
1993 when Mr Kamal Nath was the Minister, in charge of the Department that
584
Ibid. Ward is for some reason cited only with reference to her name, although this is a famous
quote from Only One Earth: The Care and Maintenance of a Small Planet, co-authored with R. Dubos
and the UN for the 1972 Stockholm Conference.
585
M.C. Mehta v. Kamal Nath, para 23.
586
Ibid.
587
Ibid, para 35.
588
Ibid, para 22.
176
the clearance was given by the Government of India and the lease was granted.
Surely it cannot be a coincidence.589
The Court took responsibility as an active creator of law in the absence of regulations that can serve to hinder this type of corruption and ecological damage. Since
the Public Trust doctrine was introduced, it has been referred to frequently in environmental cases, as an instrument to direct the executive to take due action. According to Shyam Divan and Armin Rosencranz, the doctrine may apply to unregulated areas such as the exploitation of groundwater, though this has yet to be
tested.590
4.5.3 The Polluter Pays principle
The common-law rule of strict liability laid down in Rylands v. Fletcher591 was traditionally applied in India. The doctrine makes a person responsible for damage and
loss caused by his/her acts or failure to act regardless of whether the petitioner can
establish culpability. It means that negligence can be remedied even though a causality link cannot be proven between the person responsible and the act. A defendant can be held liable for bringing or accumulating inherently dangerous materials,
e.g., toxic substances, on his/her land if these are later allowed to escape from it.
The doctrine of strict liability was replaced by the principle of absolute liability by the Constitution Bench decision in M.C. Mehta v. Union of India (Oleum Gas
Leak Case, a.k.a. the Shiram Gas Leak case).592 This case followed close upon the
Union Carbide disaster in Bhopal, 1984,593 and it was perceived as urgent to choke
the exceptions to the rule in Rylands v. Fletcher so that a sabotage theory would not
shield the American chemical company Union Carbide from the victims claims.594
In the Oleum Gas Leak case, Justice Bhagwati therefore made a lengthy reflection
about the application of the strict liability doctrine:
The rule in Rylands v. Fletcher applies only to non-natural user of the land and it
does not apply to things naturally on the land or where the escape is due to an act
of God and an act of a stranger or the default of the person injured or where the
thing which escapes is present by the consent of the person injured or in certain
cases where there is statutory authority. This rule[,] evolved in the 19th century at
a time when all these developments of science and technology had not taken
place[,] cannot afford any guidance in evolving any standard of liability consistent
with the constitutional norms and the needs of the present day economy and social structure [T]he Court need not feel inhibited by this rule
589
Ibid, para 12.

591
(1868) LR 3 HL 330.
592
AIR 1987 SC 1086 = (1987) 1 SCC 395.
593
Refers to the gas leak (methyl isocyanate) from the pesticide factory of Union Carbide that killed
more than 2,500 people and injured many thousands for life.
594
590
177
Law has to grow in order to satisfy the needs of the fast changing society and keep
abreast with the economic developments taking place in the country The Court
cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Although this Court should be
prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industrialised economy. If it is
found that it is necessary to construct a new principle of law to deal with an unusual situation which has arisen and which is likely to arise in future It is through creative
interpretation and bold innovation that the human rights jurisprudence has been
developed in India to a remarkable extent and this forward march of the human
rights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists (emphasis added).595
The law laid down was eventually a rule without exception: if any harm results on
account of such activity the enterprise must be absolutely liable to compensate for such
harm irrespective of the fact that the enterprise had taken all reasonable care and that
the harm occurred without any negligence on its part.596
The polluter pays principle was adopted by the Supreme Court as late as in 1996
in the Bichhri case.597 The rules of liability in the Oleum Gas Leak Case were discussed, but the Court then observed that
[t]he question of liability of the respondents to defray the costs of remedial
measures can also be looked into from another angle, which has now come to be
accepted universally as a sound principle, viz., the Polluter Pays Principle
Thus, according to this principle, the responsibility for repairing the damage is
that of the offending industry.598
Reference was made to the OECD and the European Communitys efforts to effectively define the principle. Affirming this rule in Vellore Citizens, Justice Kuldip
Singh of the Supreme Court added that
[t]he Polluter Pays principle as interpreted by this Court means that the absolute
liability for harm to the environment extends not only to compensate the victims of
pollution but also the cost of restoring the environmental degradation. Remediation
of the damaged environment is part of the process of Sustainable Development
595
AIR 1987 SC 1086 = (1987) 1 SCC 395, para 5, 6(i-ii).

Ibid, para 7(i). It was held in a later review of the Bhopal case that Justice Bhagwatis statement
in regards to Rylands v. Fletcher was an obiter as the question before the Court had been whether
Arts 21 and 32 were applicable, cf. Divan & Rosencranz, p. 107; Union Carbide Corporation v. Union
of India AIR 1992 SC 248, p. 261. I do not agree: in the Oleum case a Bench decided to refer the
applications for compensation to a larger Bench of five Judges to lay down the law on, i.a., (3)
What is the measure of liability of an enterprise which is engaged in an hazardous or inherently
dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. Does the rule in Rylands v. Fletcher apply or is there any other principle on which the liability can be determined.
597
(1996) 3 SCC 212 = AIR 1996 SC 1446.
598
(1996) 3 SCC 212 = AIR 1996 SC 1446, p. 1466.
596
178
and as such polluter is liable to pay the cost to the individual sufferers as well as
the cost of reversing the damaged ecology (emphasis added).599
Hence in this case the Court further expanded the meaning of the principle. However, it should be clarified here that the parts from the Bichhri case that are cited by
the Justice in Vellore Citizens refer not to the polluter pays principle but to the
Courts reasoning on the concept of absolute liability. Divan & Rosencranz consider the discussion of the polluter pays principle in Vellore Citizens to be dissatisfactory as the Bichhri case concerned tort law and the escape or discharge of toxic
substances, while Vellore Citizens involved untreated effluents and not an industrial
accident. The court, however, rolled together the polluter pays principle (applicable to non-toxic pollution cases) with the absolute liability standard (applicable to
toxic torts) (emphasis in original).600
From being largely unknown in Indian jurisprudence, the polluter pays principle
was thus applied in three cases during 1996 and furthered the question of compensation as decided in regard to strict and absolute liability.
4.5.4 The Precautionary Principle
The landmark decisions taken in Vellore Citizens also introduced the new concept
of the precautionary principle into Indian law:
[I]n the context of the municipal law [the principle] means
(i) Environmental measures by the State Government and the statutory Authorities must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The Onus of proof is on the actor or the developer/industrialist to show
that his action is environmentally benign.601
There are no specific references to the international instruments and conventions

from which the formulations are taken. For instance, para (i) above was first
framed as part of the Bergen Ministerial Declaration on Sustainable Development
in the ECE Region in 1990. Para (ii) is drawn from, among other instruments, the
Rio Declaration (Principle 15). And so on. Only a general mention is made of the
Stockholm Declaration, the Brundtland Report, the Earth Summit, etc.
In M.C. Mehta v. Union of India (Badkhal and Surajkund lakes case) the precautionary principle was affirmed and the Court added that it makes it mandatory for
the State Government to anticipate, prevent and attack the causes of environmental
degradation.602 This clarified that authorities have a duty to take actual measures in
order to anticipate, etc. and the principle thereby became a positive right of citi599
AIR 1996 SC 2715, p. 2721, para 11.

Divan & Rosencranz, p. 111, cf. pp 589f.
601
AIR 1996 SC 2715, p. 2721, para 11.
602
(1997) 3 SCC 715, para 10.
600
179
zens concerned with environmental protection. It was also said that preventive
measures have to take account of the carrying capacity of the ecosystems operating
in the environmental surroundings under consideration.603
For the benefit of meticulously developing the law, the A.P. Pollution Control
Board I v. Prof. M.V. Nayudu is the most important. The precautionary principle and
the new rule of burden of proof were discussed, in the light of the Rio Declaration
and the work of several international scholars and commissions. 604 The Supreme
Court found it
necessary to explain the meaning of the principles in more detail, so that courts
and tribunals or environmental authorities can properly apply the said principles
in the matters which come before them
The principle of precaution involves the anticipation of environmental harm and taking
measures to avoid it, or to choose the least environmentally harmful activity. It is
based on scientific uncertainty. Environmental protection should not only aim at
protecting health, prosperity and economic interest, but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger, but also by (justified) concern or risk potential (emphasis added).605
It was also pointed out that the scientific approach was based upon contemporary
trend in the adjudication of environmental matters in various countries. The Court
held that the special burden of proof is reversed. It is placed on those who want to
change the status quo, and applies to the absence of injurious effect of the actions proposed.606
As mentioned, the Narmada Bachao Andolan case concerned large dams to be
constructed on the Narmada River (the Sardar Sarovar Project). The counsel for the
petitioner maintained that the onus of proof was on the respondent, who should
satisfy the Court that there will be no environmental degradation. The Court, led
by Justice B.N. Kirpal referred to the law laid down in Vellore Citizens and A.P. Pollution Control Board I but held that
[i]t appears to us that the precautionary principle and the corresponding burden
of proof on the person who wants to change the status quo will ordinarily apply in
a case of polluting or other project or industry where the extent of damage likely to
be inflicted is not known.
When there is a state of uncertainty due to lack of data or material about the extent
of damage or pollution likely to be caused then, in order to maintain the ecology
balance, the burden of proof that the said balance will be maintained must neces-
603
Ibid, para 6.
1999 (I) JT 162 = 1999 (1) SCALE 140 = AIR 1999 SC 812.
605
Ibid, para 32, 35 (in AIR 1999 SC 812).
606
Ibid, para 37, 39.
604
180
sarily be on the industry or the unit which is likely to cause pollution (emphasis
added).607
So far in the paragraph quoted, the reasoning deviates partly from the definition of
the principle as pronounced in the cases mentioned; according to Vellore Citizens,
the polluter is to show that his action is environmentally benign thus harmless,
or of remedial character. Absence of injurious effect was a wording of A.P. Pollution Control Board I. Nevertheless, the Court in Narmada construed the principle
somewhat differently in that it added the extent of damage as a test. And apart
from the traditionally used term uncertainty, Justice Kirpal interpreted precaution
as being a question of not knowing. When the precautionary principle was applied
to the case at hand, it was therefore stated that:
[o]n the other hand where the effect on ecology or environment of setting up of an
industry is known, what has to be seen is that if the environment is likely to suffer,
then what mitigative steps can be taken to offset the same. Merely because there will be
a change is no reason to presume that there will be ecological disaster (emphasis
added).608
The Court almost seemed to be mocking the intent of the definition decided in
Vellore Citizens that lack of scientific certainty should not be used as a reason for
postponing measures to prevent by saying that the existence of knowledge
(scientific certainty) should be used to take measures to mitigate environmental
degradation. However, the Court continued:
It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be
taken to preserve the ecological balance. Sustainable development means what type or
extent of development can take place which can be sustained by nature/ecology
with or without mitigation India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is
not cost-effective or leads to ecological or environmental degradation and, therefore,
the decision in A.P. Pollution Control Boards case will have no application in
the present case (emphasis added).609
The balancing act performed by the Court in Narmada is complex and exceptional
(cf. further analysis on the drinking water aspects in Chapter VIII). The precautionary principle was invoked, but eventually not applied. Directions were, however,
given on continued monitoring and to ensure that all steps were taken not only to
protect but to restore and improve the environment.
This chapter has sought to shed light on the concept of law as seen either as being
law only when posited deliberately constructed and instituted by legislator and
607
2000 (7) SCALE 34 = (2000) 10 SCC 664, para 150.

Ibid.
609
Ibid.
608
181
courts or as otherwise, for instance in line with (moral or amoral) values, standards, and principles. The two ways of understanding law have increasingly converged over the past fifty years. The debate regarding whether there is a place for
values, morals and ethics in law and in the applied legal reasoning has thus changed
the understanding of both natural law and legal positivism. The outcome of this
debate is important not only as a matter of academic discourse, but also in the light
of the study and teaching of law to future members of the judiciary and other lawapplying institutions.
This chapter has also pointed to the importance of talking of rights as entitlements and claims, and simultaneously as matters of obligations, duties, and responsibilities. It has been shown that rights in relation to water are to be explained
foremost as the right-holders justified interests in well-being, considering the fact
that no person can live without safe access to water.
Indian courts decisions on environmental and water-related matters demonstrate a pluralistic approach and it seems as if judges follow strictly neither the positivist law doctrine, nor natural law teachings. By employing and developing the PIL
instrument, lawyers and judges have shown how the frames of the legal system are
stretchable enough to encompass far-reaching interpretations of constitutional and
other rights and duties. The countrys environmental jurisprudence has a valuebased attitude to resources and the need for functional tools to handle them, and is
moreover founded on a level of compassion for nature and sympathy with the poor
strata of society. The often progressive stances taken in the Supreme Courts decisions display a blend of the legal tradition and view of sustainable development
found in the West, the modern ecological thinking of international environmental
law and Hindu concepts, especially from the dharmic tradition. Indian jurisprudence
can therefore be seen as ancient and yet highly contemporary, with environmental
ethics and universal moral standards informing the courts interpretations.610
Much of the discussion of rights and law in this chapter has taken place at a
meta-level, i.e. it has concerned the very basic concepts of jurisprudence and has
been based on theoretical consideration of its foundations and methods. Expectations of the role of law in attaining improved access to water must be attuned accordingly. I allude here to the discrepancy between jurisprudence and how law,
regulations, and the wider concept of rights are perceived to function in society. It
has been held that most societies apply locally devised norms and practices for
who may use what water in what ways, and these may differ from all other types
of water law and water rights.611 This and the concept of legal pluralism will be
further discussed in Chapters VII and X below. Bridging the gap between rightstalk in strictly legal terms (the internal, law in books view), and various discourses
and observations that include rights and law as an essential building-block of society (an external view of law in action) requires a stable foundation of insights into
conceptual comprehensions.
610
611
Cf. Abraham; Perez; Tarlock, p. 585.

Meinzen-Dick & Bakker, p. 130.
182
From the general progress in the field of environmental law, we can conclude
that values of morality and ethics are fundamental also as the basis for law concerning access to water. To the extent that confluence has now been reached between
the theories on legal positivism and natural law there could be important consequences for how water is regarded in terms of rights so that a human right to water
can be perceived as applying even in jurisdictions where there is no written or
equivalent rule regulating such a right, and not least in the general debate over the
topic. In the next chapter, this is one of our main concerns.
183
Chapter V
A human right to water
1 Introduction
The account of water-as-a-right now returns to Gleicks question whether there is a
human right to water. The UNDP has long advocated that the worlds governments must make 20 litres of fresh, clean water daily a human right for each and everyone, and the Human Development Report of 2006 sought to move beyond water scarcity. It established that the water crisis is rooted in power inequalities but
also that there is a need to take the right to water seriously. Against this background, we need to explore what such a right entails. First, the general idea of human rights will be presented and compared with legal rights under Hohfelds
scheme of rights as corresponding to duties. The aim is to explore, from different
perspectives, the added value of seeing access to water as a human right. Secondly
and more specifically, the right-to-water discourse and movement is dealt with, including James W. Nickels test for justifying norms as human rights. The legal bases
for claiming such a right and General Comment No. 15 are discussed, as is the content of a right to water. An account of state government obligations is included.
184
2 Human rights as idea

2.1
Defining the notion
Human rights are by most accounts seen as vested in each individual or group of
individuals qua human beings; they rest on universally applicable values and interests. Rights refer to a wide continuum of values or capabilities thought to enhance
human agency, and the realisation of these values and capabilities is to ensure individual and collective well-being.612 Certain special characteristics are often tagged
onto human rights: they apply equally to all human beings; they are inalienable and
they are universal.613
These features have political implications, not least because they function as
standards of political legitimacy. The philosophical idea that all individuals of humankind are endowed with certain rights is of fundamental moral significance for
the promotion of human life; they both rest on and help to shape our moral nature as human beings.614 In a narrower sense, human rights are perceived as political norms that deal mainly with how people should be treated by their governments
and official institutions. They can, however, also impose duties on governments to
prohibit and discourage private conduct such as discrimination.615
2.2 Right to and right from

Human rights are conventionally classified into negative and positive , though not all
rights can be fitted into this strict categorisation.616 The traditional type, the negative right, obliges Y to refrain from interfering with Xs right to life, or Xs other attempt(s) to do something. For instance, the state should not subject X to torture as
X is entitled to freedom from political oppression. All individuals freedom to own
property and not to be deprived of it arbitrarily are two other examples of rights.
For these to be fulfilled, the state needs merely to abstain from certain actions.
Negative human rights deal with liberty, are fundamentally civil and political in
nature, and serve to protect the individual from excesses of the state. They are often labelled the first generation of human rights. On the contrary, the nature of
positive human rights the second generation is essentially social, economic and
cultural. These rights entail claims on government resources and demands for public expenditure, such as for due access to various aspects of welfare health care,
education, housing and roads, and possibly various subsidies to clean drinking water. The notion is often used to describe a minimal standard of living, and is of
great importance in that it ensures different members of the citizenry equal minimum conditions and treatment. Both kinds of right are covered by the Universal
612
Encyclopaedia Britannica Online/human rights, p. 1.

Donnelly, p. 10.
614
Donnelly, pp. 7, 10.
615
Nickel 2006.
616
Philosophers and political scientists such as David Hume and Adam Smith proposed this distinction, though in other words.
613
185
Declaration of Human Rights, 1948,617 and by the International Covenant on Economic, Social and Cultural Rights, 1976 (hereafter ICESCR or the Covenant). 618
The difference between the negative right and the positive may seem obvious,
but as several scholars point out, negative rights according to which the state
should refrain from interfering with certain things and doings of its citizens often
require positive endeavours to, e.g., establish courts and authorities and an organisation for general elections, and to set up and train a police force. 619 This means
that society (the state government) needs to actively take measures to fulfil its responsibilities.
That there is no clear line between the right to and the right from is shown from
what Jack Donnelly (with reference to Henry Shue) calls doing nothing more:
In some circumstances government restraint may be the key to realising the positive-sounding right to food. Consider government development programs that in
numerous Third World countries have encouraged producing cash crops for export rather than traditional food crops for local consumption. In such cases, the
right to food would have been better realised if the government had done nothing more than refrain from interfering with agricultural incentives.620
The same reasoning could possibly be applied in relation to access to (drinking) water but it is simultaneously a silly argument considering the many government
policies and incentives implemented to stimulate industrial, etc. activities that compete for scarce freshwater resources.
2.3 Human rights as natural and/or positive rights

2.3.1 Two views, or more
What is the basis of human rights? This question and its answer(s) are fundamental
for understanding the added value of a right to water. It is often claimed that natural
rights are the sources of human rights.621 Other scholars prefer to emphasise the
sheer moral aspects of the idea and leave the reference to natural law aside. 622 Yet
others hold that human rights exist independently of human-rights law, i.e. the
statutory provisions (or law made in courts) that codify certain rights. There are,
however, also those who propose that human rights must be seen (only) as results
of regional, cultural, political and/or time-bound belief systems, and constructed
accordingly. It is further common to ignore these aspects altogether by talking in
terms of a general idea or concept of human rights rather than seeking to define
617
UN General Assembly 1948.

UN General Assembly 1966b.
619
Cf. Donnelly, p. 30; Holmes & Sunstein.
620
Donnelly, p. 30; cf. Shue 1980 pp. 41-45.
621
Cf. Donnelly; Finnis (who asserts that human rights is the contemporary idiom for natural
rights, p. 198).
622
Cf. William J. Talbott.
618
186
them as either based on natural right, or informed by legal positivism. From the
general idea the specific right, e.g., to water, is then derived.
These contemporary and varying perspectives raise questions. Is it possible to
assert the existence of human rights without thinking of moral values and beliefs?
Can we be confident that positive law effectively lists and protects human rights?
Can we discard natural, metaphysical, and/or theologically-based explanations of
the idea of human rights in favour of seeing the idea as merely socially constructed
and thereby historically contingent? A short discussion based on the differences between the (essentially) two ways of understanding human rights is warranted here,
partly because scepticism at least of a thick or extended list of human rights
persists among some individuals, groups and governments, and partly because the
general jurisprudential discussion of rights as corresponding to duties is difficult
to apply in respect of human rights.
During the late eighteenth and early nineteenth centuries, the idea of human
rights played a key role in struggles against political absolutism. Liberty, in Lockes
influential words, was one of the rights that existed in the state of nature, and
meant freedom from arbitrary rule and respect for equality. This natural right, together with the right to life and property, was to be enforced by the state for the
benefit of humankind. The rights of Man were seen as inalienable and not least
important absolute. This latter aspect, nevertheless, became one of those increasingly criticised, as was the association of natural rights with religious orthodoxy.623
Bentham dismissed natural rights as nonsense on stilts, writing that [r]ight, the
substantive right, is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature come imaginary rights (emphasis in original).624
Also such political thinkers as John Stuart Mill argued that rights were ultimately
founded on their utility, and man-made, posited. As a consequence of these and
similar, critical views, the expression human rights came to replace natural rights.
The birth of the international as well as the universal recognition of human rights
can essentially be located to the second half of the twentieth century.625
In the Encyclopaedia Britannica, Burns H. Weston points out that though the
heyday of natural rights proved short, the idea was not to be extinguished and after
the fall of Nazi Germany the idea of human rights truly came into its own.626 As described in the previous chapter, a closure between natural law and legal positivism
began around this time and presumably the understanding of human rights has
been affected by this process and the resulting changes in perception of the concept of law. Weston nevertheless warns the reader that the definition of the nature
and scope of human rights is disputed:
Among the basic questions that have yet to receive conclusive answers are the
following: whether human rights are to be viewed as divine, moral, or legal entitle623
Weston.
Bentham, Anarchical Fallacies.
625
Weston.
626
Ibid.
624
187
ments; whether they are to be validated by intuition, culture, custom, social contract, principles of distributive justice, or as prerequisites for happiness; whether
they are to be understood as irrevocable or partially revocable; and whether they
are to be broad or limited in number and content (emphasis added).627
Beyond doubt, the Universal Declaration of Human Rights reflects values of natural law. The Preamble opens by declaring that a recognition of the inherent dignity
and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world (emphasis added). Similarly, Art 1 states that [a]ll human beings are born free and equal in dignity. They
are endowed with reason and conscience (emphasis added).628
The principal problem with natural law in a world far more complex than
Lockes is that the rights considered natural can differ from theorist to theorist, depending upon their conceptions of nature and thus on what law ought to be.629 Yet
most reasoning concludes that certain human rights are inherent in us, or ought to
be. The right to water is clearly a right everyone is born with.
2.3.2 Moral ground and negotiated provisions
One of those who make a clear distinction between human rights and human-rights
law is Marek Piechowiak. In his view, human-rights laws in the form of legal norms
do not establish fundamental rights and freedoms, they only guarantee them, because the rights derive from inherent dignity and are inalienable (emphasis
added).630 He writes that
[o]bjections to the universality and the existence of human rights as rights, often
stem from overlooking the distinction between human rights law and human
rights themselves (the rights which are protected by human rights law). Ignoring
the fact that the human rights concept came into existence partially to challenge the
positivistic approach to law, human rights are sometimes rejected only because they
do not accord with those characteristics of rights which were elaborated based on
statutory law (footnote omitted, emphasis added).631
We will look closer at the UN as a duty-bearer etc. shortly. For now we will only
observe that human rights can be seen as norms existing due to deliberate action to
draw up such. Numerous human-rights treaties have consequently been enacted by
the UN since 1948, containing rules decided as the result of negotiations between
627
Ibid.
Cf. Nickel 2007, p. 8, who seems to differ in his interpretation; he mentions no link between
these formulations and natural law ideology. He also omits saying anything about how positivism
was attacked after Hitlers regime.
629
Shestack, pp. 208, 217.
630
Piechowiak, p. 6.
631
Ibid, p. 5, referring to the Universal Declaration, Preamble, Sec 3; it is essential that human
rights should be protected by the rule of law.
628
188
sovereign states. They are thus part of the system of international law.632 Human
rights can be thought of as moral rights, but most rights have become legal rights as
well. To a varying extent, they have also been implemented at national level. It will
be shown here that access to (drinking) water has already been recognised as a right
in international human-rights law, though many commentators still wait for a clear
manifestation of political will among, e.g., Member States to the UN Human Rights
Council and some wait for express mentioning in a separate treaty.
It follows from the natural-law theories that there is a body of law on human
rights regardless of the UN, other international organisations, or the nation-state.
Nickel opposes seeing natural rights as influential for discussing our contemporary
human rights, and holds that human rights are international norms that exist in morality and in law but foremost, they are the result of a human-rights movement; a
political project initially undertaken after World War I. This movement has aspired
to prevent governments from exposing their citizens and residents to atrocities,
thereby promoting peace and security. The UN has played a key role in the development since its creation.633 We can interpret this as a special background of human
rights, politically coloured and people-oriented rather than influenced by a higher
creator.
Nickel points to several substantial differences between the now existing human
rights and the natural rights influencing them, and he thereby objects to there being
a strong linkage. [T]odays human rights are not part of a political philosophy with
an accompanying epistemology. They make philosophical assumptions, but they do
not require acceptance of a particular philosophy or ideology. The post-war, international human-rights movement, says Nickel, had aspirations to create international law, and therefore it did not place great emphasis on identifying the normative foundations of human rights (emphasis added). 634 That the UN system of
rights is the result of deliberate endeavours is clear from the history of the creation
of the Universal Declaration via committee work and influences taken from historic bills of rights. However, articles 22 through 27 of the Universal Declaration
make a new departure, incorporating economic and social standards. The Declaration has further been amazingly successful in establishing a fixed worldwide meaning for the idea of human rights (emphasis added).635 Indeed, it looks possible to
institute a kind of rights previously not acknowledged as fundamental to humankind.
Nickel also points out that billions of people do not believe in the God found in
Christianity, Islam and Judaism, so rights cannot have been endowed by [our]
632
Shestack, pp. 209f., reminds of that, traditionally, the theory of positivism undermines the international-law basis for human rights; emphasis is placed on the supremacy of national sovereignty rather than on the influence of inherent rights which apply regardless of the state.
633
Nickel 2006; 2007, pp. 7ff.
634
Nickel 2007, p. 7.
635
Ibid, pp. 8f.
189
Creator.636 Moreover, rights stemming from divine decree would have to be very
general and abstract (e.g., life, liberty) to be applicable over thousands of years of
historical development. But contemporary human rights as listed in UN conventions and declarations, etc. are numerous and very specific in fashion, so how did
these emerge? asks Nickel rhetorically.637
Neither can human rights be seen as basic moral norms shared by all or almost
all accepted human moralities, according to Nickel. It is unrealistic to think of
norms shared by almost all human groups. Most of all, though, human rights are
mainly about the obligations of governments. Ordinary interpersonal moralities often
have little to say about what governments should and should not do. This is a matter of political morality (emphasis added). Human rights exist because they are constructed, but the best form of existence is when a human right is supported by
strong moral and practical reasons.638 It is further asserted that a characteristic of
human rights is that they set minimum standards and leave most political decisions
in the hands of national leaders and electorates. Still, says Nickel, they are demanding standards that impose significant constraints on legislation, policy-making,
and official behavior.639 This is another way of saying that to a certain extent, implementation is a function of each nation states discretion.
Piechowiak has written that
modelling the legal system on the basis of a respect for human rights, helps to
protect positive law from degenerating into legal lawlessness. The State and the
law exist for the individual living in a society The contemporary State based on a
respect for human rights is usually characterised as a democratic State governed by the
rule of law, realizing an appropriate social policy (emphasis in original).640
A conclusion to be drawn from his, Nickel, and others reasoning is that human
rights are typical products of a soft, or inclusive, modern perspective on the concept of (positive) law. This does not make them unique in the sense of sui generis, it
merely gives them a Morals Added! label, or possibly one reading Based on Pure
Morals!. A human right that cannot in some way be traced back to values embraced by the theory of natural rights, to religion or the like is, nonetheless, almost
certainly unthinkable.
2.3.3 Human rights correlated with duties
To return to the question of whether human rights are rights, the analysis of opposites and correlatives of a right is again relevant. According to the Hohfeldian
axiom, there cannot be a right without a duty. Right-holder Xs right is addressed to
636
According to the U.S. Declaration of Independence (1776), people are endowed by their
Creator with natural rights to life, liberty, and the pursuit of happiness.
637
Nickel 2006.
638
Nickel 2006, cf. 2007, p. 10.
639
Nickel 2007, p. 10.
640
Piechowiak, pp. 9f.
190
some person or party Y, and would be meaningless unless Y had a corresponding

duty or responsibility to honour Xs right.
The question of rights and duties and the two-sides-of-the-coin is more complex in relation to human rights, and the traditional understanding of the scheme is
not all that suitable. Two examples will show the difficulties involved. First: the
rights of the binding International Covenant on Civil and Political Rights, 1966.
This concerns the relationship between the state and its citizens/residents, and
seeks to regulate situations and practices that are generally thought of as intolerable.
In general, we can envisage certain rights vested in each and everyone, which entail
a corresponding duty for the state not to interfere with its citizens and others positions in civil and political matters. Such negative rights are, in Hohfelds terminology, equal to privileges/liberties and stand in opposition to the states no-claims.
For instance, in the sentence [X has a claim that Y if and only if Y has a duty to
X to ], can stand for the right to liberty:
X has a claim-right that the state refrains from interfering with her liberty, if and
only if there is a duty incumbent on the state to refrain from interfering with her
liberty.
According to the International Covenant on Civil and Political Rights, a similar, legal, right applies in relation to the State Parties that have signed the Covenant:
No-one shall be deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law (Art 9(1)).
As a duty is expressed here, there is also a valid right. This right is subject to restrictions, meaning that the duty-bearer is entitled to circumscribe the right-holders full
enjoyment of the original right, under certain conditions. The provision sets out the
posited law, codified in line with what the legislating parties agreed in the mid1960s.641
The next example is the second generation of rights to, among other things,
work, social security and education as laid down in the ICESCR. These are more
difficult to express logically in the Hohfeldian way. Can be replaced by a right of
everyone to the enjoyment of the highest attainable standard of physical and mental
health, as it is formulated in Art 12 of the ICESCR? Very generally, the claimrights of this equally binding treaty are referred to as welfare rights which the
State Parties are obliged to protect. This is, however, mostly interpreted as endeavour to ensure, for instance by providing assistance in different forms. By
switching perspectives, we see that as the duties, obligations and responsibilities are
often indirect in relation to what negative rights entail, it is all the more difficult to
establish clearly what the corresponding rights mean.
That a human right and the accompanying duties are difficult to pinpoint cannot
be the same as that the right per se is meaningless or logically corrupt. However, it is
641
The right as well as its conditions also apply to non-signatories and non-ratifying signatories of
the treaty, in so far as it can be established that they mirror customary law.
191
often held and we can only assume that this is by Hohfeldian standards that the
ICESCR states goals, but not real rights. If we take the example of the right to an
adequate standard of living in Art 11(1), which specifically includes a right to adequate food, we see that the way in which Hohfeld deconstructed rights is indeed
difficult to apply here:
X has a claim-right that the government provides her with adequate food if and
only if the state has a duty to provide her with adequate food (emphasis added).
The difficulty relates to how Art 11(1) continues by laying down that the States parties will take appropriate steps to ensure the realization of this right. This formulation, interpreted in the light of the background of this and other human rights in
the ICESCR,642 tells us that the duty-bearer is indeed under an obligation, but merely
to take consecutive steps towards ensuring that food can be provided. This is a binding responsibility, but a very abstract one.643 If we go by Hart and others definition of a
right as relating to choice, will, and power, it would not seem as if we were discussing a right at all here possibly an aspiration, but not something that right-holders
can choose to enforce or waive against their government. If, instead, we employ
Razs definition, it suffices to justify the governments and/or other parties duties
by pointing to Xs interest and well-being (and establishe that there are no simultaneous conflicting considerations of greater weight). The decision to take the perspective of X rather than Y hence determines whether Hohfelds definition of
rights is applicable.
When Hohfeld sketched out his scheme he had contractual situations and twoparty relationships in mind.644 Hart and his followers continued this line of thought
in holding that a right is possessed by or belongs to the holder, and excluded thirdparty beneficiaries from the relation, as we saw in the previous chapter. Both these
scholars were products of their time and could limit their analyses to theoretical relationships645 the law in books and not in action whereas it is not feasible here
to disregard the political, socioeconomic, etc. context of law. This circumstance
both strengthens and weakens the case for a second-generation right such as food
and water. Critics generally point to the difficulties and costs involved in implementing such rights, since the implications for the duty-bearer would thus prevent us
642
The first generation of civil and political rights was separated from the second so that they
could be regulated in two autonomous treaties. Reflecting different schools of thought and political normativity, they are held to differ not only in content but also in legitimacy. For instance, the
second generation rights are held to have originated primarily in the socialist tradition of early
nineteenth-century France, Vasak; Weston. Cf. Donnelly; Nickel 2006, 2007; Shue.
643
Nickel 2007, p. 38, writes that [s]ocial and economic rights presuppose modern relations of
the production and the institutions of the redistributive state. These rights are abstract, subject
to a variety of interpretations and hence less useful in political criticism and less suitable for legal
implementation.
644
Cf. Hohfeld 1913.
645
Both refer occasionally to various court decisions but the predominant part of their respective
reasoning is based on hypothetical and rhetorical arguments.
192
from regarding these rights as rights of X. The logical fallacy of such a conclusion
is at odds with most understandings of jurisprudence.
Others, like Weston, display a converging attitude. Second-generation rights are
indeed positive rights and necessitate state intervention because they are, fundamentally, claims to social equality:
[I]nequities created by unregulated national and transnational capitalism become
more and more evident over time and are not accounted for by explanations
based on gender or race, [and therefore] it is probable that the demand for second-generation rights will grow and mature, and in some instances even lead to
violence.646
And as Nickel holds, there are philosophers who pursue the notion that human
rights are concerned with standards of a minimally good life, of the most imperative requirements of distributive justice and fairness and of subsistence. 647 He particularly mentions Shue, who defines subsistence as:
unpolluted air, unpolluted water, adequate food, adequate clothing, adequate
shelter, and minimal preventive health care A right to subsistence would not
mean, at one extreme, that every baby born with a need for open-heart surgery
has a right to have it, but it also would not count as adequate food a diet that produces a life expectancy of 35 years of fever-laden, parasite-ridden listlessness.648
Shue adds that most of the worlds malnourished are also diseased since malnutrition lowers resistance to disease, and hunger and infestation normally form a tight
vicious circle. A right to subsistence, in Shues words, therefore includes the provision of subsistence at least to those who cannot provide for themselves.649
Nickel also quotes Brian Orend, who holds that [m]aterial subsistence means
having secure access to those resources one requires to meet ones biological needs
notably a minimal level of nutritious food, clean water, fresh air, some clothing
and shelter, and basic preventive health care.650
Nickel himself proposes that subsistence alone offers too minimal a conception
of social rights, and therefore extends the list.651 Hence, it obligates governments
to so govern that certain questions can be answered in the affirmative. Among
those are
Subsistence: do conditions allow all people to secure safe air, food, water,
etc. if they engage in work and self-help insofar as they can; practice mutual
aid through organisations such as families, neighbourhoods, and churches;
646
Weston.
Nickel 2007, pp. 138f. In this context, John Rawls, Amartya Sen, and Martha Nussbaum are mentioned.
648
Shue, p. 23.
649
Ibid, pp. 23f.
650
Orend 2001, cited in Nickel 2007, p. 139.
651
Nickel 2007, p. 139, does this in accordance with what former U.S. Secretary of State Cyrus
Vance suggested in 1977, just like Shue did in his book of 1996.
647
193
and procure help from available government assistance programs? Do all

people capable of work enjoy access to productive opportunities that allow
them to contribute to well-being?
Health: do (good and healthy) environmental conditions, water and sewer
systems, etc., give people excellent chances of surviving childhood and
childbirth, and living a normal lifespan?
Education: do available educational resources give people good opportunities to learn the skills necessary for survival, health, functioning, citizenship,
and productivity?652
The authors mentioned here Nickel, Shue, Orend, etc. all put human rights into
a perspective of contemporary and highly pertinent needs. They do not shy away
from discussing the ensuing problems of implementation and remedies, such as
when Nickel writes that judges lack the powers necessary to implement the right to
basic education they can neither create nor fund school systems. Judges should
not have such powers in a democracy, but should nonetheless play a vital role.653
The same is inevitably true for a right to access to water; the judiciary cannot provide this except in words.
Returning to the issue of duties, it is yet true that a right which does not involve
a response (in the sense of a duty) of some sort in another person (party, institution) is much like an empty gesture or at least only a half-full one? The symbolic
value of holding on to a right might be very high, but a right in companion with an
acknowledged obligation has a higher dignity. For human rights we must start with
Razs definition of a right rather than Hohfelds. Accordingly, a certain aspect of
fundamental well-being such as subsistence justifies the burden on the dutybearer, in the interest of the beneficiaries. Numerous questions of priority will have
to be answered in order to fulfil the rights involved, and answering these questions
will function as initial, but yet appropriate steps to ensure the realization, as various international human rights treaties articulate it.
2.4 Duty-bearers and addressees

If we have now established that duties follow also upon human rights, the next
question regards the duty-bearers, the parties on whom obligations are imposed. As
mentioned above, a characteristic of human rights is that they are addressed mainly
to governments. It is a widespread belief that the utmost burden for securing human rights both freedom from and right to is best placed upon the state. International human rights law places legal obligations on states to promote and protect
these rights in a progressive way. States parties carry these obligations either as a result of ratifying human rights treaties or under customary international law.
State governments are as such empowered to delegate tasks to the domestic
agencies and institutions that are, in turn, most able to effectuate them. Responsi652
653
Nickel 2007, p. 140.

Ibid, pp. 142, 144.
194
bility in a federal state (such as India) will fall on the Centre government as well as
on the State governments, according to the division of power set between different
levels.
The relevant question is whether a certain duty-bearer is capable of implementing a right, on a sustainable, long-term basis. The universal character of the matter
creates a situation where decisions of priority often need to be taken. Other responsibilities thus risk being abandoned because governments cannot afford the
expenditures and costs of upholding both rights to water and to education, health
care, criminal justice, etc. with the available resources. These questions belong to
the area of macroeconomic policy and budgetary allowances but are simultaneously
related to issues of political accountability and corrupt practice.654
Governments are not the only addressees of relevance here. In addition to the
primary addressee, we can identify secondary addressees who bear back-up responsibilities international institutions such as the UN and the World Bank are among
these.655 Accordingly, a right such as freedom from racial and other discrimination
requires individuals to refrain from acting in certain ways. Though at the end of the
day this comes down to governments installing proper sanctions and remedies for
wrongful conduct, it shows how we all are involved in the respect for human rights.
Citizens with voting power also have a responsibility for creating and maintaining a
democratic political system, by pressuring governments if necessary.656
Piechowiak has identified some of the basic characteristics of human rights as a
complex of relations which is constituted of real relations between individuals who
have the duty to act (or refrain from acting) towards each other, and the relations
of every human being to certain goods (things, circumstances) securing his or her
well-being (emphasis added).657 The idea of human rights, including that to water,
can be seen as related to notions of morality and ethics in the sense of justifiable
expectations of the good life. The rights and corresponding duties applying to access
to water are not solely the states responsibility. Especially if human rights codify
morality, this also puts responsibilities on water users themselves. People all over
the world have a role to play in supporting the protection of human rights on a local scale as well as on a global one. Art 29 of the Universal Declaration of Human
Rights states that everyone has duties to the community and that everyones rights
and freedoms can be subject to limitations under law for the purpose of securing
due recognition and respect for the rights and freedoms of others (emphasis
added). Such expressions of reciprocal duties and the responsibilities of individuals
also tell us about the legacy of the natural-rights theories.
654
Cf. Nickel 1993, pp. 81f.

Cf. UNDP 2006, p. 60.
656
Nickel 1993, p. 81, 2007, p. 10. It has been pointed out that the question of locating an addressee is complicated by the fact that existing institutions including states, international agencies and transnational corporations and the structures and systems that these exist within may
be sources of world hunger and thirst rather than their remedy. Cf. ONeill, p. 77, in Nickel 1993,
ibid.
657
Piechowiak, p. 10.
655
195
2.5 Human rights in the UN discourse

2.5.1 Legal and institutional framework
The United Nations work is generally associated with the contemporary idea of
human rights. The point of departure is that [t]he recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world.658 Though the concept
of dignity is abstract and used in different ways depending on text and context, it
is widely recognised as the primary principle underlying human rights.659
In UN work, and especially its Universal Declaration of Human Rights and subsequent Declarations and Conventions, the notion of human rights is given a more
uniform definition. Many UN documents have legally-binding force in the form
of treaties or conventions but the Universal Declaration itself has only advisory
status. Being part of international law, both the binding and the non-binding kinds
of right are contested from time to time, not least by developing states that see
their national sovereignty being questioned.
The post-World War II era has nevertheless witnessed a thickening catalogue of
human rights. Their promotion and protection has been a major preoccupation of
the UN:
One of the great achievements of the United Nations is the creation of a comprehensive body of human rights law, which, for the first time in history, provides us
with a universal and internationally protected code of human rights, one to which
all nations can subscribe and to which all people can aspire.
Not only has the Organization painstakingly defined a broad range of internationally accepted rights including economic, social and cultural, as well as political
and civil rights; it has also established mechanisms with which to promote and protect these rights and to assist governments in carrying out their responsibilities
The UNs role as legislator in the field is thus of essential value. The main sources
of human-rights law are the Universal Declaration of Human Rights and the Charter of the United Nations both adopted by the General Assembly (GA) in 1948
as well as a number of documents and treaties stemming from NGOs and IGOs.
Human Rights have further been extended through decisions by the GA. Provisions pertinent to water are contained in, e.g., specific, legally-binding instruments
such as the ICESCR. It addresses the 156 State parties that have ratified it so far.
When this and the International Covenant on Civil and Political Rights, also
adopted in 1966, entered into force 10 years later, they functioned to make many of
the provisions of the Universal Declaration of Human Rights effectively binding.
658
Preamble to the Universal Declaration of Human Rights, 1948. GA resolution 217 A (III) of
10 December 1948.
659
de Gaay Fortman 2006a, p. 34.
660
UN web page More Information/Human Rights.
196
Of the UN bodies that are specifically relevant to the subject of water as a human right, the most important are:
the General Assembly. Made up of 192 Member States, it decides (normally) by
a simple majority vote. Its Resolutions (decisions) are non-binding on member states;
the Economic and Social Council (ECOSOC). It is composed of 54 member
Governments and makes recommendations to the GA, often based on reports and resolutions of the Human Rights Council;
the Human Rights Council. Established in 2006, it replaced the Commission on
Human Rights. It is a quasi-standing body under the GA with a complaint
procedure that allows individuals and organisations to bring complaints
about violations of human rights. It is the main policy-making body on human rights and drafts international, binding conventions and non-binding
declarations. Its main subsidiary body is the Sub-Commission on the Promotion and Protection of Human Rights;
the UN High Commissioner for Human Rights (UNHCHR). The post was created in 1993 and has the rank of Under Secretary-General of the UN. The
function of the High Commissioner is to coordinate UN work on human
rights, and the UNHCHR Office can submit reports to, e.g., the Human
Rights Council;
the Committee on Economic, Social and Cultural Rights has since 1985 supervised
the implementation of the Covenant and can for this purpose issue nonbinding General Comments. Decision-making is based on consensus. In periodic reports to the Committee, States parties outline the legislative, judicial
and administrative measures taken to ensure that government policies and
practices conform to the principles of the Covenant.661
An integral part of the body of human-rights law provides for a monitoring role for
the UN. Conventional mechanisms (treaty bodies), and extra-conventional mechanisms (special rapporteurs, representatives, experts and working groups) have been
appointed in order to monitor compliance with the international human-rights instruments and to investigate alleged human-rights abuses.
2.5.2 The rights-based approach
Much of the groundwork for pronouncing (access to) water as a human right has
been prompted by the so-called rights-based approach.662 Development and human rights were considered two separate spheres with diverging strategies and
objectives until the late 1980s. A rights-based approach (RBA) to development
and development aid has since taken root, much due to impetus to UN agencies
661
Cf. UN web pages The United Nations and Human Rights, United Nations Documentation:
Research Guide.
662
Cf. Filmer-Wilson.
197
from former Secretary-General Kofi Annan in 1997-98.663 The UN began to implement the approach in 1998, with the intention of helping states and international
agencies to redirect their development thinking.664 The rights-based approach describes situations not simply in terms of human needs, or of developmental requirements, but in terms of societys obligation to respond to the inalienable rights of
individuals. It empowers people to demand justice as a right, not as charity, and gives
communities a moral basis from which to claim international assistance where
needed (emphasis added).665 Without doubt, Annan added many and strongly
value-charged notions to the approach, and influenced many more UN agencies to
develop clear strategies in line with this approach.
The RBA has been portrayed as a promise of re-politicising areas of development work that have become domesticated as they have been mainstreamed by
powerful institutions like the World Bank.666 Emelie Filmer-Wilson describes how the
traditional development theories were increasingly challenged: free-trade, investment flows and general economic growth had not proved to be the solution to
wealth disparities and development failures and so a re-evaluation from within began to disclose the classic models as myths.667 Aspects of a human-centred, participatory, accountable and transparent process were perceived as fundamental to add,
for instance in the view of the UN General Assembly.
Both the UNDP and institutions such as the Swedish International Aid Agency
(Sida), have adopted the RBA for their development cooperation. 668 Sida emphasises, among other things, a shared pool of values based on the international conventions on human rights and a clear division of responsibility based in principle
on the states obligations and the individuals human rights.669 Participation, accountability, non-discrimination and inclusion, and empowerment, are other key
words, which approximates the general definition of good governance.
According to a definition by the UNDP, the RBA
means a clear understanding of the difference between right and need. A right is something to which one is entitled solely by virtue of being a person. It is that which
enables an individual to live with dignity. A right can be enforced and entails an obligation on the part of the government. A need, on the other hand, is an aspiration that
can be quite legitimate but it is not necessarily associated with an obligation on the
part of the government to cater to it. The satisfaction of a need cannot be enforced. Human rights make the difference between being and just merely existing
663
Filmer-Wilson, p. 214; Nyamu-Musembi & Cornwall, p. 15.

UN/Annual Report of the Secretary-General on the Work of the Organization, para 173.
665
Ibid, para 174.
666
Nyamu-Musembi & Cornwall, p. 1.
667
Filmer-Wilson, pp. 214ff.
668
UNDP web page The Human Rights Based Approach.
669
Sida/Ministry for Foreign Affairs, p. 1.
670
UNDP 2003, p. 1.
664
198
Within the normative UN framework, the Human Development Reports of 2000

and 2002 affirmed that just like two sides of the same coin human development
is essential for realising human rights and human rights are essential for full human
development. In the UNDP Human Development Report of 2006 it was observed
that [a]t a national level adherence to a rights-based approach requires the development of laws, policies, procedures and institutions that lead progressively to realization of the right to water Mechanisms for redress and government accountability are also critical.671
2.6 Criticism and problems

2.6.1 Issues of implementation and enforcement
Considering the fact that economic, social and cultural human rights do not always
materialise, in the sense that they are often neglected or violated, is it realistic to assert their raison dtre? Is it meaningful even to discuss such rights if they cannot, ultimately, be (fully) enforced? Should we conclude that economic, social and cultural
rights are rights without remedies (cures, compensations, improvements)?672
The place of human rights in public international law means that what is legislated applies in a binding manner between sovereign and (formally) equal states.
Predominantly today, it is the conduct of states within the international community
that is regulated. However, international law is nowadays also a matter of entities
endowed with international personality actors on the international scene. The
UN, EU, WTO and other inter-governmental organisations are included here, and
individuals are increasingly subjects of international law.673
The content of binding and non-binding parts of international law becomes part
of domestic law in different ways. Simplified, international law is the result of a signature (by a legitimate representative of the state), ratification by the states parliament (or equivalent legislating authority) and lastly an express incorporation into
domestic law. It is chiefly the latter step which can take various forms. Incorporation normally involves a legal reform because new content is added and/or existing
law is amended. Reference can be made in the domestic legislation to international
law. Further, domestic courts can choose to interpret treaties, declarations and
resolutions as well as international customary law. The use, i.e. practical implementation, of international-law principles to fill gaps in domestic law, can also lead to
the international law becoming binding.
International human rights are frequently considered a challenge to the sovereignty of states, and states inherent interests cannot, therefore, normally be relied
on to ensure compliance. The enforcement mechanisms are flawed, not least at international level. Individuals, as victims and potential claimants, cannot themselves
address the United Nations judicial framework (which includes the International
671
UNDP 2006, p. 60.

Cf. Holmes & Sunstein.
673
Cf. Wallace, pp. 1, 34f, 58f.
672
199
Court of Justice, ICJ Cf. below on the complaints mechanism, though).674 Sanctions are not altogether absent from the UN system, though, but the word as such
is not found in the UN Charter or other document.675 There are courts and tribunals with global jurisdiction, including the ICJ in The Hague.676 Conventionally,
though, it is the momentum of diplomacy, pressure, persuasion, reporting, and
generally bad reputation within the UN framework as well as criticism from watchdog NGOs and the mass-media that may drive duty-bearing governments to conformity. The protection of exogenous state interests is, nevertheless, seldom
enough of an incentive for governments to seek to fulfil welfare rights. As human
rights are addressed mainly to state governments, they must be interventionist and
well funded, not only in terms of budgetary allocations but also regarding commitment and political will. The capacity of governments as duty-bearers is further a
function of taxpayers, who must be ready to foot the bill.677
A generally accepted postulate, according to Weston, is that human rights refer
to a wide continuum of claims ranging from the most justiciable to the most aspirational. Human rights partake of both the legal and the moral orders, sometimes
indistinguishably. They are expressive of both the is and the ought in human affairs. However, one of the questions that this in turn raises is; What is the value
of embracing nonjusticiable rights as part of the jurisprudence of human rights? 678
Attempts to formulate human rights may inescapably lead to assumptions about
what social and other changes can thereby be accomplished. Looking at the human
rights movement, though, the very formulation of rights can be functional to demand change, and a firm belief in the idea can entail a challenge of existing institutions, practices, and norms. This may thus empower citizens to act to vindicate
their rights.679
These concerns have been partly addressed since the UN member states approved the draft for an Optional Protocol, containing a complaints mechanism to
guarantee the rights of the ICESCR. This mechanism will allow victims of human
rights violations to address the UN if they were not able to obtain relief in their
country, as is already possible under the International Covenant on Civil and Political Rights. Adoption of the Protocol by the Human Rights Council and in the GA
will make the rights under both Covenants equally enforceable.680
674
Cf. Kantsin. According to the Statute of the International Court of Justice, Art 34(1), [o]nly
states may be parties in cases before the Court.
675
The UN can however take action against violation of agreements such as treaties: embargos,
exclusion, suspension, expulsion, and military force are the means available.
676
The European Court of Human Rights instituted by the Council of Europe to monitor
compliance by Signatory Parties of the European Convention on Human Rights from 1950
have no possibility of deciding on sanctions.
677
Cf. Holmes & Sunstein, p. 75.
678
Weston.
679
Cf. Donnelly, p. 12
680
UNHCHR, 2008.
200
The contemporary understanding of human rights addresses specific problems,

and numerous rights are therefore listed in binding UN treaties. They have become
the rights of the lawyer, rather than the abstract rights of the philosopher, 681 and are
often referred to in domestic courts. Without doubt, though, human rights may
have a moral foundation and a base in legitimacy but much of their practical impact
depends on them developing into legally valid, positive rights.
2.6.2 Not a gift from the West
Finally, the conception of human rights is informed by a historical as well as a geocultural bias. An intrinsic problem with our understanding of human rights as
idea, ideology and concept is that they embody mainly a Western/Euro-American
body of thought. For instance, the UN Universal Declaration and the documents
pursuing it are not easily reconciled by all non-Western scholars, and this has led to
much criticism over the years. The discussions centre on the interpretation of what
the concept of human rights means in a multi-cultural, diverse world, whether the
idea is genuinely universal in its application or should involve a feature of relativism, and whether it can be justified to people from many different cultural backgrounds.682 Add to this that words and concepts may not entail quite the same
meaning in Hindu or Islamic law as in Western law, and theorising that treats generalisations across legal families, traditions, cultures and orders becomes problematic.683
The idea of rights that human beings are entitled to claim on moral grounds is,
however, not a unique invention of the West. Such rights have links to gods, a
prophet or the like references to various kinds of human right are found in several religious documents, such as the Quran. The Edicts of Ashoka, who propagated
Buddhism in ancient India, emphasise the importance of governmental tolerance in
public policy.
Amartya Sen has questioned the thesis that Asian values are less supportive of
freedom (political and civil liberties) and more concerned with order and discipline.
Considering that about 60 percent of the world population lives in Asia, their prevailing values cannot be generalised. The championing of equality is of quite recent
origin; democracy and political freedom in the modern sense cannot be found in
the pre-enlightenment tradition in any part of the world, West or East.684 There is
hence no clash of civilizations, and important antecedents of traditional commitments can be found plentifully in Asian as well as Western cultures.685 As Upendra
Baxi notes, human rights are not the gifts of the West to the Rest.686
681
Nickel 2006, 2007, p. 7.

Miller, p. 40.
683
Twining 2005b, p. 6.
684
Sen 1997, pp. 33, 37.
685
Ibid, p. 40.
686
Baxi 2002, p. vi.
682
201
2.7 Summing up
The idea of human rights can be described as a coherent framework for practical
action. Together with the rights-based approach, the idea is compounded of visions, values, standards and principles of what development should strive to
achieve. The UN Charter, the Universal Declaration of Human Rights and subsequent documents provide legally-binding human-rights instruments.687 It is, nevertheless, clear that the idea needs to be actively turned into a practical instrument or
it may remain a vague unworkable concept. If one of the main ambitions of developing a human-rights doctrine is to set a (minimum) standard of good government, then an important endeavour is to push all governments towards fulfilment
of such standards by means of persuasion, inducement and incentives.688 However,
neither carrots nor sticks abound in the realm of human-rights law until implemented at national level. The problem of implementation is therefore often as
much a part of the human-rights discussion as are the fundamental values they are
to protect.
Some would say that when a human right is posited in wordings as explicit as
possible and preferably within the UN system this provides for an additional context to which consideration must be taken by national governments and other decision-makers, but over and above what natural law endows. Be that as it may. There
is a group of legally valid human rights, ratified by states, alongside a vivid discussion of what qualifies as a human right. This question is beyond resolution, and the
approach taken here is that the international community has to deal with a set of
concerns related to human well-being, including rights associated with access to
fundamental resources such as water.689
3 The human right to water

3.1
Genesis and progress of the discourse
In 1977, the Mar del Plata Action Plan was adopted by the UN Water Conference,
and subsequently by the UN General Assembly. The document contains a Resolution on Community Water Supply, which states that [a]ll people have a right to
have access to drinking water in quantities and of a quality equal to their basic
needs (emphasis added).690 The Mar del Plata Action Plan and Resolution was the
first of its kind in focusing on access to drinking water and using the word right in
this context.691 The Resolution states that all people have a right to access to drinking water, and though the reference to a right was embryonic and not ac687
Cf. UNDP 2003, pp. iv, 11.

Cf. Miller, p. 40.
689
Cf. Gleick 1999, p. 2; Nickel; Shue.
690
UN 1978, Ch. I, Res. II (a), p. 66; General Assembly Resolution 32/158.
691
Cf. that the UN Conference on the Human Environment in Stockholm 1972 merely pointed
out the necessity of safeguarding water along with other natural resources.
688
202
companied by any lines of reasoning to substantiate the claim, it made a great impact on the discourse henceforth. It unquestionably represents the landmark from
which the debate on a right to water could start;692 but it contains no binding rules.
Despite the UNs subsequent International Drinking Water Supply and Sanitation Decade 1981-1990, 15 more years would elapse before the message of Mar del
Plata was yet again on the table and only a few scholars would discuss the issue of
water as a human or other right.693 In 1992, Stephen McCaffrey concluded that there is
a legal right at least to water sufficient to sustain life, and that states must have the
due diligence to safeguard these rights as a priority.694 Agenda 21, adopted at the
United Nations Conference on Environment and Development (UNCED) in 1992,
recalls that the commonly agreed premise was that all peoples, whatever their
stage of development and their social and economic conditions, have the right to
have access to drinking water in quantities and of a quality equal to their basic
needs (emphasis added).695 Again, this document is soft law; not binding as such.
A Sub-Commission of the Economic and Social Council adopted a Resolution
on the Promotion of the realization of the right of access of everyone to drinking
water supply and sanitation services in 1997,696 and commissioned a working paper
on the question.697 In a GA Resolution on the right of development, adopted in
1999, it was reaffirmed that in the full realisation of the right to development the
rights to food and clean water are fundamental human rights and their promotion constitutes a moral imperative both for national Governments and for the international
community (emphasis added).698 From the articulation used, it would seem as if
there is consensus on the existence of a right to water. The GA Resolution on the
UN Millennium Declaration with the MDGs was adopted in the subsequent year, 699
and it has thereafter been affirmed repeatedly that the attainment of goal 7/target
10 on access to safe drinking water is a prerequisite for attaining most of the other
seven development goals and targets as well.
The next major step was the adoption by the UN Economic and Social Councils Committee on Economic, Social and Cultural Rights (CESCR, here: the
Committee) of General Comment No. 15 in 2002.700 The aim of this Committee
is to provide guidelines on the interpretation of specific aspects of the human rights
enshrined in the ICESCR. General Comments aim to clarify the content of Covenant rights in more detail; they may outline potential violations of those rights and
692
Cf. Salman & McInerney-Lankford, pp. 8f.

Gleick 1998, p. 489.
694
McCaffrey 1992, in Gleick, ibid.
695
Agenda 21, UNCED 1992b, Ch 18, para 47.
696
UN Economic and Social Council 1997.
697
UN Sub-Commission on Promotion and Protection of Human Rights 1997. El-Hadji Guiss
was entrusted to draft the working paper.
698
UN General Assembly 1999, para 12(a).
699
UN General Assembly 2000.
700
UN Committee on Economic, Social and Cultural Rights 2002. Hereafter: General Comment
No. 15.
693
203
offer advice to States-parties on how best to comply with their obligations under
the treaties. General Comments cannot create new human rights; they are only interpretive, guiding tools and their contents do not, in themselves, constitute legally
binding law. The Comments are, nonetheless, considered of authoritative value.
General Comment No. 15 (hereafter: the Comment) was adopted under the
Committees agenda item on substantive issues arising from the implementation of
the ICESCRs Art 11 and 12. The Comment states that [t]he human right to water
is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. The right therefore entitles everyone to sufficient,
safe, acceptable, physically accessible and affordable water for personal and domestic uses. Normatively, this involves the right to maintain access to existing water
supplies [and] to a system of water supply and management.701 It further stresses
that water is a limited natural resource and a public commodity fundamental to life
and health, and emphasises the duty of States Parties to progressively realise this
right.
The Comment contains rather brief guidelines on what the right to water
means. On several occasions, UN bodies such as the Human Rights Council have
requested more detailed studies of how the right to water can be realised.702
Consequently, Draft Guidelines came from the Councils Special Rapporteur ElHadji Guiss in 2005,703 and the UNHCHR reported on the scope and content of
the relevant human rights obligation in August 2007.704 The latter concludes that
though access to safe drinking water is not explicitly recognised as a human right per se
in human rights treaties,705 it has been acknowledged by two expert bodies,706 as well
as by States Parties in several resolutions, declarations and plans of action i.e. in
both binding and non-binding documents. In March 2008, the Human Rights
Council decided to appoint an independent expert on human rights obligations related to access to safe drinking water and sanitation.707
In addition, academic institutions, individual scholars and NGOs have issued
reports, briefing papers, guidelines etc., in which the right to water is described and
interpreted. Since 2004, the Centre on Housing Rights and Evictions (COHRE)
has been one of the most important advocates. Its work has included the development of a comprehensive Manual on the Right to Water and Sanitation (described
as a tool to assist policy makers and practitioners develop strategies for implement-
701
General Comment No. 15, para. 1, 2, and 10.

The requests related to drinking water supply as well as to sanitation measures.
703
UN Sub-Commission on Promotion and Protection of Human Rights 2005. The history behind appointing a Special Rapporteur and requesting him to investigate a right to access is given
in Tully 2005, p. 36.
704
UNHCHR 2007b.
705
UNHCHR 2007b, para 45.
706
Viz., the Committees General Comment and Guisss Draft Guidelines, the Sub-Commission
for the Promotion and Protection of Human Rights 2005.
707
UNHCHR 2008, web page Open-Ended Working Group; UNHRC 2008.
702
204
ing the human right to water and sanitation), to be tested by several governments.708 The Manual will be referred to below.
Interest to contribute to the understanding of what a human right to water entails has thus been very great. The mentioned publications bring up and discuss
domestic and regional legislations, national court decisions and water users perceptions of their access realities. A focus has been put on the meaning of the (corresponding) obligations, and what general hurdles are involved in attaining the right.
We can also note a third step in the discussions of a right to water: the 2006
UNDP Human Development Report, where an appeal was made to make water a
human right and mean it!.709 According to the Report, the starting point and unifying principle for public action is the recognition that water (20 lpcd as a minimum) is a basic human right, and that the primary public policy challenge now is to
give substance to the framework set by the Committee when adopting General
Comment No. 15. The rights-based approach is confirmed, and it is stated that
[e]xclusion from water and sanitation services on the basis of poverty, ability to
pay, group membership or place of habitation is a violation of the human right to
water. If water is a human right that governments have a duty to uphold, the corollary is that many of the worlds governments, developed as well as developing,
are falling far short of their obligations. They are violating the human rights of
their citizens on a large scale.710
It is added that at national level, laws, policies, procedures and institutions leading
to a progressive realisation of the right are required. Mechanisms for redress and
government accountability are equally important.
Most interesting in the Reports short statement on the human right to water is
perhaps how it fires back at sceptics:
Some commentators see the application of rights language to water and other
social and economic entitlements as an example of rhetorical loose talk. That assessment is mistaken. Declaring water a human right clearly does not mean that
the water crisis will be resolved in short order. Nor does a rights framework provide automatic answers to difficult policy questions about pricing, investments
and service delivery. However, human rights represent a powerful moral claim (emphasis added).711
So far, so good. But what might really alarm those unwilling to recognise the justifiable aspects of talking of water as a human right is probably what follows:
[Human rights] can also act as a source of empowerment and mobilization, creating expectations and enabling poor people to expand their entitlements through
708
The Manual was a product of collaboration between COHREs Right to Water Programme,
the American Association for the Advancement of Science (AAAS) Science and Human Rights
Programme, the Swiss Agency for Development and Cooperation (SDC), and the UNHABITAT.
709
UNDP 2006, p. 60.
710
Ibid.
711
Ibid, pp. 60f.
205
legal and political channels and through claims on the resources of national
governments and the international community.712
This quotation pinpoints the strength of the word right showing the potential in
transformation from academic discourse to political dynamite.
We have yet to analyse what a human right to water entails, and on what legal
bases the asserted claim rests. Before opening the description and discussion of todays situation and discourse, the right to water will be assessed against a test in six
steps for the justification of specific human rights, as proposed by Nickel.
3.2 Applying Nickels test

Is it necessary to justify special issues of concern before they are welcomed into the
family of human rights? Nickel argues that it is, in order not to undermine the
value of existing rights. He proposes a test in six steps which a new right would
have to satisfy.713 Although this theory is not very elaborate in its present state, it is
useful for thinking about water as a right.
1. Substantial and recurrent threats
The first step requires showing that people regularly experience threats (here: problems, injustices, dangers or abuses) in the area protected by the proposed right. The
threat that makes a specific right necessary should be widespread and with some
frequency; systematic in meaning built-in or inherent; and egregious as in seriously
harmful.714 There can be no social guarantees against every conceivable threat, nor
is it rational to make guarantees against what is ineradicable at the time.715
That some 1.2 billion people around the world, two thirds of whom in Asia,
lack access to improved water sources constitutes a clear threat, problem, and injustice. According to the reports compiled by the IPCC, we will see an increasing
freshwater scarcity in the future, extending the problem of lack of access to even
more people.
2. The importance of what is protected
Here, a distinction is to be made between threats of discomfort and threats of serious indignity and injustice. The standard of important needs should be set quite
high.
There is no doubt that lack of safe drinking water is a threat to health, life, and
development potential. It constitutes a problem of serious indignity and injustice
and has far-reaching consequences, including that girl children are frequently missing out on education. The problem is interlinked with lack of sanitation facilities,
child mortality, general gender equality and several other targets included in the UN
Millennium Development Goals.
712
Ibid, p. 61.
Nickel 2007, pp. 70-79.
714
Donnelly, p. 226, cited in Nickel 2007, p. 73.
715
Shue, p. 17, cited in Nickel 2007, p. 71.
713
206
3. Can it be a universal right?

Todays concept of human rights has people as holders and beneficiaries and state
governments as addressees. The right must be universally applicable. However,
Nickel writes under Step 1 that a threat can be acknowledged as important to a certain part of the human population, such as elderly, women, people with handicaps
and other groups. This should also apply when determining Step 3. Other typical
characteristics of human rights also need to be satisfied, such as that the right is inherent and inalienable.
The right to water is based on an inherent need, fundamental to all human beings. It is thus genuinely universal. The right has state governments as the primary
addressees.
4. Would some weaker norm be as effective?
If self-help, social aid or charity, and/or structural changes could be of assistance to
eliminate or restrain the threat in a way that adequately responds to it, such might
be preferable to enacting a right. A right has the advantage of being firm, definite,
and linked to duties, responsibilities and remedies. Once established as a human
right, this normally also means greater political attention. One disadvantage is that
rights risk being rigidly interpreted by bureaucrats.
The fourth step is crucial: it relates to much of the factual opposition to perceiving water as a right rather than a policy recommendation. In terms of self-help, we
can start with how Nickel has argued that the way in which world hunger is normally framed is inadequate hunger is something more than famine and starvation:
[M]ost people who experience hunger and malnutrition are functional, are getting
water and a little food, and are capable of doing things to find food such as moving or seeking work. If we think of hungry and malnourished people as agents, albeit agents with limited capacities and options, we will avoid assuming that selfhelp is impossible and that only donated foreign food or money can address the
problem. Further, viewing hungry people as agents is a more respectful stance
The authors point is that a better answer than providing food and water is to see the
local circumstances and patterns of acting and living among those suffering from
malnourishment. The approach should not be to relieve normal adults of responsibility for self-provision; welfare rights such as the right to adequate food will be
intolerably expensive if everyone simply receives a free supply of all vital goods
(emphasis added).717 Hunger is a strong stimulus to action, Nickel continues; so
[f]or both practical and moral reasons it is important not to deny the capacity for
action.718 However, where people have limited abilities or the circumstances are
too harsh for them to gain sufficient access to safe food and water, they have a
716
Nickel 1996, p. 172.

Ibid, p. 176.
718
Ibid, pp. 180f.
717
207
claim to assistance a claim which should, nevertheless, not automatically fall on

governments or international organisations.
Nickel calls attention to several important aspects of water stress and lack of access. Arguments in line with Nickels are common, among bureaucrats and others.
It is often expressed that everyone, as a matter of fact, has water (and/or that
people can afford to pay something for the service, should water be delivered to
them) in other words, that it is beyond doubt that people get access to some water somehow because otherwise they would die. Against this can be held that almost 15 percent of the Indian population, or 170 million people, are estimated to
lack access to an improved water source.719 Another way of formulating this is to
say that this enormous group has access to some quantity of water, probably on a
daily basis, but that this water and/or its source does not fulfil the criteria for being
safe. A large part of it may, for instance, be of such inferior quality that those consuming the water risk falling severely ill (mainly with diarrhoea and cholera), and
even dying from the diseases.720
Clearly, a slow but positive development is taking place in this field, by way of
awareness and education about health issues, technical solutions including infrastructure and improved sanitation facilities, general income growth, etc. Nonetheless, the problem is real: human beings do die from non-access to water and such
risk-groups need to be assisted. This conclusion is not meant as a sign of disrespect
towards capable, competent agents; it is delivered in acknowledgement of the poverty and power inequalities witnessed in our world.
In terms of what Nickel holds on voluntary social aid and charity, it is easily observed how numerous individuals and NGOs take on the task of working with water-related questions. Large sums of official foreign development aid and even private donations contribute to this work. At ground level, neighbours and community members often help out in times of scarcity but there is a clear limit to these
efforts on a large scale and on an everyday basis. For instance, very few NGOs
probably have access to sources of available water on a larger, structural scale.
Besides, many UN members have signed to work according to the rights-based
approach, meaning that the role of human rights is to be acknowledged when giving development aid.
Summing up this fourth step, we see that neither self-help, social aid nor structural changes seem to be the ultimate, fully adequate solution to the problem of
lack of access to safe drinking water.
719
Figure for India as of 2004.

1.8 million people die every year from diarrhoeal diseases (including cholera); 90 percent of
which are children under 5, mostly in developing countries. Some 88 percent of diarrhoeal disease is attributed to unsafe water supply, inadequate sanitation and hygiene. Improved water supply reduces diarrhoea morbidity by between 6 percent and 25 percent, if severe outcomes are included, according to WHO, web page Water, sanitation and hygiene links to health. Infant mortality per 1000 live births in India is 60, (97 among the 20 poorest percent). Diarrhoea, often
caused by unsafe drinking water or poor sanitation, is the second leading cause of death among
children, UNICEF, web page India.
720
208
5. The burdens are justifiable

According to Nickel, each of us is both a holder and an addressee of human rights
and this in itself entails a problem, among other things because an extensive list of
rights leads to a heavy burden on taxpayers. We will therefore want to ensure that
these burdens are not distributed in ways that are severely unfair or economically
destructive.
A human right to water for everyone will be burdensome on state governments.
Ultimately, it will entail larger burdens on all taxpayers, and higher tariffs for those
connected to the water distribution network to pay more for amounts over a certain reasonable threshold. To this is added a requirement to waste less, and that reallocation will be necessary between water-using sectors, where industrial and agricultural users will need to develop a better water-efficiency in order to decrease
their demands. This will be seen as severely unfair, and possibly even economically
destructive, by individuals and lobby groups.
6. Feasible in a majority of countries
Nickels test ends by asking whether the right can be successfully implemented in
an ample majority of countries today.721 If this briefly formulated test fails, the
putative human right may simply fail to be a human right, or it may be a justifiable
human right whose scope is narrower (and hence less demanding) than we initially
thought [but it] may nonetheless be a justifiable constitutional right (emphasis
added).722
Nickel does not explain in any depth what would render the right successful in
the sense of the sixth step. His analysis of human rights instead continues with the
statement that [i]f we do not face the issue of feasibility at the justification stage,
we will face it at the application stage (emphasis added).723 I cannot agree with this
sixth step as such. In traditional jurisprudence, a clear distinction is made between
the discussion of a subjective right per se, and its implementation and enforcement.
This distinction applies regardless of whether the right is enacted, existing and
valid, or is still only at the stage of being discussed, drafted and proposed. Thus, the
question of feasibility cannot determine the justification of the potential right, even if
it can be foreseen that various difficulties may arise at the stage of enforcement and
application.724 It is difficult to see the point of Nickels last step to determine
whether a certain threat ought to be protected as a human right.
Considering the five initial steps of Nickels test, though, we can conclude that
the right to water is without doubt justifiable as a human right.
721
Nickel 2007, p. 79.

Ibid.
723
Ibid.
724
The question of implementation can, nevertheless, be related to economic effectiveness calculated from a utility-point of view; for instance in comparison with status quo or with another right
(e.g., one differently formulated). Cf. Faure & Skogh.
722
209
3.3 Further arguments for acknowledging a right

To Nickels general test, we can add what Gleick sees as five reasons for explicitly
acknowledging a human right to water:
- One reason is to encourage the international community and individual governments to renew their efforts to meet basic water needs of their populations the discussion as such is extremely important as the issue otherwise
risks being ignored at national or regional level;
- The second reason is that acknowledging such a right is much more likely to
generate pressure to translate it into specific national and international legal
obligations and responsibilities;
- Thirdly it maintains a spotlight of attention on the deplorable state of water
management in many parts of the world;
- A fourth reason is to focus attention on the need to address international
watershed disputes more widely and to resolve conflicts over the use of
shared waters among all parties (this applies not only among nation-states,
but also to such disputes as that over the Kaveri River in India); and
- Fifthly, explicitly acknowledging a human right to water can help to set specific priorities for water policy meeting a basic water requirement for all
humans that satisfying this right should take precedence over other watermanagement and investment decisions.725
A strong claim on behalf of water as a human right such as that it exists independently of an explicit legal enactment certainly provokes sceptical doubts and
countering philosophical defences,726 but it is justified. The claim is based on the
insight that water is a fundamental need and an absolute necessity for survival, and
hence of indispensable value. (Access to) water is ultimately a matter of life and
dignity, and must therefore be considered an absolute, inherent right, by nature,
and one which is inherent in each and everyone of us. This right thus equates to an
eternal and non-changeable principle. It depends on the merits of the principle
rather than on its posited sources and social facts.
3.4 Bases for asserting a legal right to water

3.4.1 A self-standing right in positive law?
There are those who warn that truly fundamental human rights risk erosion if the
right to water is given a status parallel to the existing rights. Were respect to be paid
to all kinds of human right, this would inevitably lead to many balancing acts
where governments must make priorities.727 Some commentators point out that the
725
Gleick 1998, p. 489.

Nickel 2006.
727
Tully 2005, p. 43, is one of few jurists who answer the question of a human right to water by
stating that the legally accurate answer is no. For a critique of this standpoint, cf. Langford.
726
210
right to periodic holidays with pay is also listed as a human right though far
from realisable in most parts of the world.728
What, then, from the strictly legal point of view is at the heart of the debate in
this regard? We have to trace a development over time. From the declarations and
action plans reflected in, for example, the outcomes of Mar del Plata in 1977, via
the UNDPs Human Development Report of 2006 and beyond, we can conclude
that a right to water does indeed exist in soft law. The question of a legal binding
right to water is slightly more complicated and the approach towards it differs in
a few respects. Despite the absence of court rulings,729 state practice in the sense of
international customary law730 and explicit mention of a right to water in any of the
general international human rights treaties,731 it is common today to hold that there
is a self-standing human right to water. The General Comment opened for commentators on the matter. The term self-standing in the debate refers essentially to the
Comment, para 3, which we will look at more closely. Some are of the perception
that [l]ifting the right to water from the shadow of other associated rights could be
seen as awarding it long overdue standing to be considered as a self-standing
right.732 Some assert that the human right to water deserves, and is better served
by, a convention of its own.733
In relation to the question of a self-standing right to water, the process up to the
formulation of the General Comment No. 15 is of some interest. This began in
1997 when the UN Sub-Commission on the Promotion and Protection of Human
Rights requested an investigation into the right of access. A Special Rapporteur
(Guiss) was appointed in 1998, mandated to compile periodic reports. Stephen Tully
recounts how the Special Rapporteur considered it desirable to identify an accept728
Art 7(d), ICESCR, states that [t]he States Parties to the present Covenant recognize the right
of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with
pay, as well as remuneration for public holidays.
729
The issue at stake in Zander v. Sweden, adjudged 1993 in the European Court of Human Rights,
was not a material right to safe water but concerned the judicial guarantee to a fair trial.
730
McCaffrey 1992, quoted in Gleick 1998, p. 489.
731
The London Protocol on Water and Health to the UNECE Water Convention is undoubtedly
both a body of positive, binding law and a departure from (a right to) access to clean water for
all. However, its jurisdiction is restricted to the European and a few additional countries. UNECEs jurisdiction includes 56 member states: countries in Europe, the USA, Canada, Israel and
the Central Asian republics. Art 5 of the Protocol stipulates that parties shall be guided in particular by the following principles and approaches: equitable access to water, adequate in
terms both of quantity and of quality, should be provided for all members of the population, especially those who suffer a disadvantage or social exclusion. Art 4(2) states that the Parties
shall, in particular, take all appropriate measures for the purpose of ensuring: (a) adequate supplies of wholesome drinking water. Art 6(1) states that the Parties shall pursue the aims of: (a)
access to drinking water for everyone.
732
Scanlon, Cassar & Nemes, p. 20.
733
The NGO The Green Cross with former Head of State of the USSR, Mikhail Gorbachev, as
its Founding President campaigns that unless a relevant legal framework is established, the current situation will not be redressed.
211
able legal framework since it would be impossible for individuals to call for this
right without a legal text to support them and that the Committee chose to locate a right to access under two provisions of the [ICESCR], viz., Art 11 and 12.734
When adopting the General Comment, the Committee departed from Art 11(1)
of the ICESCR, holding that it specifies a number of rights emanating from, and
indispensable for, the realization of the right to an adequate standard of living including adequate food, clothing and housing (emphasis added).735 The Committee
then held that
[t]he use of the word including indicates that this catalogue of rights was not intended to be exhaustive. The right to water clearly falls within the category of guarantees
essential for securing an adequate standard of living, particularly since it is one of the
most fundamental conditions for survival. Moreover, the Committee has previously recognized that water is a human right The right to water is also inextricably related to the right to the highest standard of health (art. 12, para. 1) and the
rights to adequate housing and adequate food (art. 11, para. 1). The right should
also be seen in conjunction with other rights enshrined in the International Bill of
Rights, foremost among them the right to life and human dignity (emphasis
added, footnotes omitted).736
What is noteworthy here is how water is referred to as instrumental in its own right
for other rights essential for securing, as the Committee articulates it. It has a
value as an independent right.
The alternative to viewing the right as self-standing is to either perceive it as derivable from existing rights, or as sufficiently dealt with under the rights to housing
and health. It could also be argued that the word water needs to be spelt out, and
thus added to the ICESCR. The latter approach would, not least, function so as to
prevent water from being neglected in relation to rights such as food.
Gleick is of the opinion that the right to water is a derivative right; it can be
derived from other human rights human rights pronounced explicitly.737 In an article
published in 1998, he pleaded for the human right to water, substantiating this
claim with an account of the process underlying the drafting of the Universal Declaration in 1947-1948.738 Though the Universal Declaration is not a binding document, its content and the general backing it received among the international com734
Tully 2005, p. 36, with references.

General Comment No. 15, para 3.
736
General Comment No. 15, para 3, with references to General Comments No 6 (of 1995) and
14 (of 2000). Art 11(1) states that [t]he States Parties to the present Covenant recognize the
right of everyone to an adequate standard of living for himself and his family, including adequate
food, clothing and housing, and to the continuous improvement of living conditions. The States
Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect
the essential importance of international co-operation based on free consent. According to Art
12(1), [t]he States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
737
Gleick 1998, p. 490, 2000, p. 5, 2007, p. 2.
738
Gleick 1998, pp. 489ff., 2000, pp. 5f.
735
212
munity were important foundations of the ICESCR and the Covenant on Political
and Civil Rights when adopted in 1966. Gleick writes about the final debate of the
Declaration, and especially the provision stating that everyone has the right to a
standard of living, including food, clothing, housing and medical care, and to social
services, adequate for the health and well-being of himself and his family (now Art
25, emphasis added). Gleick continues that
the emphasis was refocused from providing a general standard of living to a
more encompassing right to health and well-being. Why was water not included in
this list? The debate around the wording makes clear that the specific provisions
for food, clothing, housing, and so on were not meant to be all-inclusive, but representative or indicative of the component elements of an adequate standard of living
In Gleicks view, therefore, it is unfeasible to satisfy the standards of the present

Art 25 with less than a sufficient quantity and quality of water available; some basic
amount of clean water is also necessary to prevent death from dehydration, reduce
the risk of water-related diseases etc. This is a fact long recognised by UN bodies
such as the WHO. Gleick concludes that [l]ogic further suggests that the framers of
the [Universal Declaration] considered water to be one of the component elements as fundamental as air (emphasis added).740 As additional support for this
conclusion, he holds that the Declaration also explicitly mentions rights that must
be considered less fundamental than a right to water (such as the right to work).
Art 25 was intended to include the right to a basic water requirement.741
Apart from referring to the same legal bases as the Committee later did, Gleick
also adduces Art 12(3) of the ICESCR, which concerns the prevention, treatment
and control of diseases; and Art 6 of the Covenant on Civil and Political Rights,
which states everyones inherent right to life. Thus the importance of water must
be inferred as a derivative right necessary to meet this provision.742 To Gleicks
arguments we can add those of Malcolm Langford who has summarised the background debates on Art 11. He seems to conclude that it was not proposed to explicitly list water, but that there is little guidance to find on the question. 743
McCaffrey concluded in 1992 that if there is a human right to water under the basic instruments of international human rights law it must be inferred.744
Not everyone considers the self-standing right to water to be a good idea. Langford describes how a number of states have, during various meetings of the international community, strongly lobbied against an inclusion of such a right, or mention of it, in declarations and other outcomes. This principally concerns those states
that adopt hostile attitudes to some or all aspects of economic and social rights: the
739
Gleick 1998, p. 490, with reference to the Yearbook of the United Nations, 1956, p. 216.
Ibid, p. 491.
741
Gleick 2000, p. 6.
742
Gleick 1998, p. 492.
743
Langford, pp. 440ff., with reference, i.a., back to Gleick, ibid.
744
McCaffrey 1992, in Salman & McInerney-Lankford, p. 57.
740
213
U.S.A., Japan, China and Australia, a group of countries whose influence should
not be underestimated.745 Canada should also be added to the list.
The reluctance can partly be seen against how a concrete consequence of regarding (access to safe drinking) water as a self-standing right is the possibility to
appoint a Special Rapporteur for the Commission of Human Rights, mandated to
investigate, monitor and recommend solutions to the ensuing problems in an independent manner. Currently, there is no-one designated to follow Guiss. As noted
above, the Council adopted in March 2008 a resolution which does not refer to water as a right, but speaks only of access. It appointed an independent expert, for a
period of three years, on the issue. A separate expert on the matter is, nonetheless,
not of the same dignity as a Rapporteur, and will not have the same mandate. The
independent expert is to prepare a compendium of best practices and make recommendations to states.746
The resolution appointing an expert was adopted by consensus in the Human
Rights Council. The resolution emphasises that governments have obligations to ensure access to safe drinking water and sanitation under international human rights
law. COHRE has commented upon the fact that no right was acknowledged:
Although the Council did not proceed as far as it could have, its creation of an
Independent Expert mechanism and clear recognition of human rights obligations
relating to water and sanitation are important breakthroughs. The resolution
firmly places the right to water and sanitation on the Council agenda.747
If the right to access to safe drinking water is not explicitly mentioned in a legallybinding document of international law, can it still be a human right in the sense of
positive law? The answer comes down to what can reasonably be deduced derived by any established method of interpretation. Before proceeding to other legal foundations of relevance to seeing access to water as a self-standing right, this
jurisprudential facet needs to be developed.
3.4.2 Interpreting including
The Vienna Convention on the Law of Treaties, 1969, lays down general and special rules for how to construe international law such as the ICESCR.748 Langford
has summarised the relevant provisions (Art 31-32) in relation to a right to water:
The official rules of interpretation of [international law] contain a number of interpretive criteria that are biased in favour of a purposive approach that takes account
of the evolution of international law Use of materials that concerns the drafting
of a treaty is strictly circumscribed (emphasis added).749
745
Cf. Langford, p. 445.

UNHRC 2008.
747
COHRE 2008b.
748
Art 31, the Vienna Convention on the Law of Treaties, 1969, United Nations, Treaty Series,
vol. 1155, p. 331.
749
Langford, p. 435.
746
214
The Committee made an interpretation of the ICESCR, foremost its Art 11(1), but
it is not possible to discern whether subsequent agreements or ditto practices were
investigated. There is little binding law in respect of a human right to water (see
next sub-section) and there is hence little more than the provisions of and Preamble to the ICESCR to construe.
Applying a textual reading, the ordinary meaning of the term including should
be to contain or comprise as part of a whole,750 thus antonymous to exhaustive
and all-embracing. The Committee was however justified in taking a second, supplementary step to confirm its understanding of the word including, and to make
the result less obscure. It seemingly added an intentionalist interpretation (that the
catalogue of rights in Art 11(1) was not intended to be exhaustive) possibly concluded from the drafting process, just as Gleick advocated.
However, there are no references to records, statements or other material that
could show the foundation of this reasoning, i.e. that draw on how the drafters of
the ICESCR made the decision in relation to Art 11(1).751 Criticism for interpretative creativity is thus not wholly unwarranted but then, all posited law is the result of human construction.752
A related question, though, is whether the Committee should have made a
(more) restrictive construction of what rights Art 11 recognises. Tully is of this view,
holding that including is a self-evidently imprecise term leading one to speculate
on the number and nature of other characteristics essential to an adequate standard
of living but not explicitly guaranteed by the Covenant. Does General Comment
No. 15 herald rights to access electricity, the internet or other essential civic services such as postal delivery?753 Tullys construction can be dismissed as sheer
nonsense. There will hardly be any flood of new rights only because the special
status of water is recognised. As Langford stresses, the Committees message is that
water is a prerequisite for the fulfilment of many other rights. Foremost, water is
indispensable for human survival on Earth: [U]nclean water is essentially responsible for the deaths of approximately 3900 children a day. Water is patently not
comparable or reducible to postal delivery and internet access (footnote omitted).754
We can also note how COHRE has aimed at the words adequate standard of
living in Art 11(1), holding that [i]n light of the fundamental importance of water
for human survival, well being and dignity, it would be impossible to maintain that
750
Merriam-Websters dictionary.
This is missing also in the reports from Guiss, UN Sub-Commission on Promotion and Protection of Human Rights 2002, 2005.
752
The political considerations and negotiations behind the decision-making of various UN bodies are nowadays made public to a larger degree than previously, making it possible to follow the
stances taken by different states. For instance, the debates regarding access to water etc. in the
Human Rights Council (31st Plenary Meeting, 15 March 2006) can be watched as a live webcast
on http://www.un.org/webcast/unhrc/archive.asp?go=061127.
753
Tully 2005, p. 37.
754
Langford, p. 437.
751
215
an individual lacking access to minimum supplies of safe water for basic needs
could enjoy an adequate standard of living. COHRE also reminds of, with reference to the Vienna Convention, that the community of states has adopted unanimously international declarations expressing that the right to an adequate standard
of living includes water and sanitation, in addition to food, clothing and housing.
The declarations referred to are the Programme of Action of the International
Conference on Population and Development (Principle 2), and the Habitat Agenda
(Principle 11), decided at the 1994 International Conference on Population and
Development (ICPD), Cairo, and the 1996 Second UN Conference on Human Settlements (Habitat II), Istanbul, respectively.755 Such declarations amount to subsequent agreement between the parties regarding the interpretation of the treaty according to the Vienna Convention (Art 31(a)).
3.4.3 Additional legal bases
In addition to Art 11 and 12 of the ICESCR, there is the likewise legally binding International Covenant for Civil and Political Rights.756 It implicitly recognises a right
to water, although perhaps less strongly than the ICESCR, by stating that every
human being has the inherent right to life (Art 6(1)). It is to be interpreted expansively, requiring that states adopt positive measures in order not to deprive anyone
of the right to life.757 Protection against arbitrary and intentional denial of access to
sufficient water would thus be covered under Art 6.
The (self-standing) right to water also draws a legal base from two of the six
core human-rights treaties in the corpus of international human rights law. The
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), 1979, sets out the following:
State-parties shall take all appropriate measures to eliminate discrimination
against women in rural areas in order to ensure, on a basis of equality of men and
women, that they participate in and benefit from rural development and, in particular, shall ensure to women the right
(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communication (Art 14(2)) (emphasis added).
The Convention on the Rights of the Child, 1989, contains this provision:
States-parties shall pursue full implementation of the right of the child to the enjoyment of the highest attainable standard of health and, in particular, shall take
appropriate measures
(c) to combat disease and malnutrition through the provision of adequate nutritious foods and clean drinking water (Art 24(2)) (emphasis added).
755
Cf. COHRE 2008b.

UN General Assembly 1966a.
757
Cf. Gleick 1998, pp. 492f.
756
216
As can be seen, the Convention against Discrimination of Women is relevant in regard of water supply in rural areas only. The right of provision of water to benefit
children is more broadly regulated and the particular mention of disease and malnutrition reminds one of how Art 12(2)(c) of the ICESCR regulates the prevention of
epidemics, etc. Whereas the wider articulation in the Convention on the Rights of
the Child should also be applicable to taking preventive steps, there is no scope to
enlarge the interpretation of the CEDAW to include even water for all womens
needs. These two conventions are far from all-encompassing in laying down a human right to water. Nonetheless, rural women and children may compose the majority of the group lacking access to safe water. A self-standing right applies at least to
them.
Other conventions also mention water,758 and are legally binding upon the States
Parties that have signed and ratified them. However, the group comprised is fairly
small. In this light, the General Comment clearly adds a normative framework for
States Parties, albeit still non-binding in the strict legal sense.
3.4.4 Right to water as customary law
Some scholars hold a self-standing right to water as acknowledgeable only if it attains the status of international customary law. The criteria involve, as mentioned in
the previous chapter, a general, consistent and widespread state practice in the meaning of repetition of similar international acts over some time. The acts must be
taken by a significant number of states, and not be rejected by a significant number
of states. Those acts must occur out of sense of obligation (opinio juris).
What the state practice would have to consist in cannot be laid down in detail at
this stage, nor can it be said exactly how long time such practice would have to endure, or how many states must practise a right to water. In any event, though, it
would not suffice that a nation state communicates its acknowledgement of the
right but does little more to establish its commitment. A range of obligations need
to be met. With a prudent estimation, it seems unlikely that the right to water
would comply with the criteria in the foreseeable future.
3.5 Substantive content of the right to water

3.5.1 Basic need requirements
Leaving for now the question of what status the right to water has, we turn to investigate what has been concluded on the content of the right in terms of quantity
and quality. The General Comment No. 15 (2002), the draft guidelines from the
Special Rapporteur (2005) and the subsequent Report from the High Commissioner (2007) all bring up the right to water as well as the obligations connected to the
implementation of such a right.
758
Foremost here are two Geneva Conventions of 1949 relating to the treatment of prisoners and
civilians in times of war.
217
The Comment delimits its applicability to water for personal and domestic uses, uses
ordinarily defined as drinking, personal sanitation, washing of clothes, food preparation, personal- and household hygiene. Drinking means water for consumption
through beverages and foodstuffs.759 The water supplied to each person must be
sufficient and continuous, where the quantity should correspond to WHO guidelines.
There are several definitions of the notion access to safe water, of which perhaps the most frequently used is from the WHO and UNICEF jointly. Definitions
sometimes include considerations of quantity, with the acceptable limit ranging
from 3 to 50 lpcd. (It should be remembered here that access should be distinguished from consumption.) According to Guy Howard and Jamie Bartram, whose
detailed study of domestic water quantities etc. for the WHO in 2003 is regularly
cited in this context, the minimum that human beings need is 7.5 litres of safe water each day, of which 2 lpcd is to support food preparation and the remainder is
for drinking.760 To this is added water for basic health protection. Experience
shows, according to Howard and Bartram, that this together is equivalent to a water collection of less than 20 lpcd.761
Gleick compiled estimations that were available by the early 1990s, and concluded that the minimum water requirement for fluid replacement was about 3 lpcd
under average temperate climate conditions and with normal activity, whereas the
estimate for tropical and subtropical climates was about 5 lpcd.762 This amount sufficed for physiological survival, but Gleick added that a minimum requirement also
had to be defined for providing basic sanitation services. A variety of methods and
techniques being available, additional health benefits are identifiable when up to
20 [lpcd] of clean water are provided.763 Water requirements for hygienic needs
should then be added, as well as water necessary for food preparation. The total
amount recommended is 50 lpcd.
For comparison, we can look at how the WHO and NGOs such as The Sphere
Project and The Water, Engineering and Development Centre (WCED) have estimated the quantities of water needed for domestic use in emergencies (such as
refugee camps). As much as 7 lpcd is then seen as a minimum allocation for
short-term survival; this is sustainable for only a few days but this quantity
also includes cleanup from food preparation.764 An adaptation of Abraham Maslows
hierarchy pyramid is used to show how quantitative needs grow with the time a
759
General Comment No. 15, para. 12(a) and footnote 13.

This is an estimate based on requirements of lactating women who engage in moderate physical activity in above-average temperatures. It will however not account for those living in unusually hot environments or engaged in strenuous physical activity where minimum needs of water
for drinking may be considerably greater. Howard & Bartram, pp. 7, 9.
761
Ibid, p. 23.
762
Gleick 1996, p. 84 with references.
763
Ibid, p. 85 with references.
764
WHO 2005b, p. 3.
760
218
person stays in one location. The base of the pyramid is equal to the needs of ordinary society, i.e., a non-emergency situation:
Figure 3. Hierarchy of water requirements
From WHO 2005b.
According to the WHO estimates, the medium-term allocation must be 15-20 lpcd,
a quantity seen as sustainable for a few months. Ultimately, lpcd quantity will depend on such factors as climate and cultural practices as well as each persons age
and gender.765
The WHO has attempted a shift in the definition of access to safe water. Instead of only gathering information from water providers via questionnaires, consumer-based information is now included. The current approach uses household
surveys in an effort to assess the actual use of facilities. Data are reported for populations with and without access to an improved water source/ improved technologies (Table 3 below).766
The definition of improved water source/technology includes certain criteria:
(i) a significantly increased probability that the water is safe, (ii) that it is more accessible, and (iii) some measures against contamination are being taken to protect
the water source.767 However, that a water supply is improved does not guarantee
water that is safe or that it complies with e.g. the WHOs own guidelines for
drinking-water quality.768 It only assumes a greater likelihood that a source is clean
in comparison with those characterised as unimproved, because of the level of
technology used.
765
WHO 2005b, p. 3.
WHO/UNICEF 2005; Pacific Institute for Studies in Development, Environment, and Security; and the World Resources Institute.
767
Hutton & Haller.
768
WHO 2006
766
219
Table 3: Sources of water

Improved water sources
Household connection*
Public standpipe/tap
Own borehole/tubewell
Protected dug well
Protected spring
Rainwater collection
(Bottled water)**
Unimproved sources
Unprotected dug well
Unprotected spring
River, pond, etc. (surface water)
Vendor-provided water
Bottled water
Tanker-truck water
From WHO and UNICEF.769

* Connection piped into dwelling, yard, or plot.
** Bottled water is considered as improved technology only when the household
uses water from an improved source for its cooking and personal hygiene.770
As can be seen, the WHO and UNICEF do not currently regard vendor-provided
water as coming from an improved source. This is because
the regulatory framework to ensure water safety from vendors is absent in most
countries and no other guarantees can be given that the water purchased is from a
safe source. In addition, the minimum quantities of water required for drinking
and basic hygiene are often not affordable where vendors are the suppliers of water. If better regulation and the development of new partnerships bring the assurance of adequate quality, and sufficient quantity, this criterion will need to be
modified.771
The World Bank defines safe access as the number of people who have reasonable
means of getting an adequate amount of water that is clean and safe for drinking,
washing and essential household activities, expressed as a percentage of the total
population. This is believed to reflect the health of a countrys people and also the
countrys ability to collect, clean, and distribute water. Water is safe or unsafe depending on the amount of bacteria in it. An adequate amount means enough water to satisfy metabolic, hygienic and domestic requirements, usually about 20 lpcd.
However, the expression reasonable access also exists in the World Banks terminology; in urban areas it means that there is a public fountain or water tap located
within 200 m of the household. In rural areas, it implies that members of the
household do not have to spend excessive time each day fetching water. 772 For wa769
WHO/UNICEF, 2005, p. 6; 2006, p. 4. As household surveys are not conducted regularly in

many countries, direct comparisons between countries become difficult. The same applies over
time within the same country. Direct comparisons are additionally complicated by the fact that
these data hide disparities between regions and socioeconomic classes.
770
WHO/UNICEF 2006, p. 4.
771
772
The World Bank web pages Access to Safe Water, Sources of water.
220
ter users to have reasonable access according to WHO/UNICEF, there must be

availability of at least 20 lpcd from an improved source within one km of the users
dwelling. The Asian Development Bank has adopted the same criteria.
3.5.2 Physical accessibility
In practice, accessibility is a matter of, among other things, household connections,
public standpipes/-posts, kiosks within a certain distance, and the frequency of private water delivery through tankers, bullock carts and the like. This issue relates to
infrastructure requirements in general and capacity within the home to store fresh
water; family size and who in the family fetches the water. Especially in slum areas,
this accessibility is more often than not under-dimensioned, non- or badlyfunctioning, or the delivery is simply shut off. The question of affordability adds to
these obstacles, or constitutes the very problem (see sub-section below).
The Comment obliges national governments to ensure that water and adequate
water facilities and services are accessible to everyone, i.e. within safe physical reach
of all sections of the community, and without discrimination.773 This also means
that sufficient and acceptable water must be within or in the immediate vicinity of
households as well as of educational institutions and workplaces. 774 For instance, in
urban areas a person is assumed to have access to safe water if there is water within
200 m of her/his dwelling, through a tap or a public standpipe. 775 Special attention
should be given to, among others, those living in arid and semi-arid areas. The
availability of drinking water within the household through a household connection
(including water piped to the yard or plot) provides the highest attainable level of
service and normally allows the use of drinking water in such quantities as fulfil the
householders health and hygiene requirements.776 Where a drinking-water source is
not available within the property and the householders have to walk over five minutes to get their water, it is likely that they will not use more than the very basic
quantities required for hygiene, drinking and cooking.777 Again, we can compare
with what Howard & Bartram suggested, as this table is often reproduced:
773
General Comment No. 15, para 12(c)(i),(iii), 13-16.

General Comment No. 15 para 12 (c)(i). A household includes permanent or semi-permanent
as well as temporary halting sites, ibid, note 16.
775
Pacific Institute for Studies in Development, Environment, and Security. Cf. Zrah 2000, p.
296.
776
On-plot access is typically about 50 lpcd, WHO 2003, p. 14.
777
774
221
Table 4. Summary of requirement for water service level to promote health.

Service level
Access measure
Needs met
Level of health
concern
No access (quantity
collected often below 5 lpcd)
Basic access (average quantity unlikely
to exceed 20 lpcd)
More than 1000m or 30

minutes total collection
time
Between 100 and 1000m
or 5 to 30 minutes total
collection time
Very high
Intermediate access
(average quantity
about 50 lpcd)
Water delivered through

one tap on plot (or within
100m or 5 minutes total
collection time)
Water supplied through
multiple taps continuously
Consumption cannot be assured. Hygiene not possible (unless practised at

source)
Consumption should be assured. Hygiene hand-washing and basic food hygiene possible; laundry/ bathing difficult
to assure unless carried out at source
Consumption assured. Hygiene all
basic personal and food hygiene assured;
laundry and bathing should also be assured
Consumption all needs met. Hygiene
all needs should be met
Optimal access (average quantity 100

lpcd and above)
High
Low
Very low
Howard & Bartram, p. 22.
In these calculations, it could seem as if only domestic needs are accounted for.
Howard & Bartram focused on what is needed for health and household in terms
of drinking water, food preparation, hygiene and other health issues, cleaning, etc.
However, they also considered what are termed productive uses of domestic water
at household level, which includes brewing, small-scale food production and
household construction in low-income areas. They note that direct health benefits
from such uses are derived from, e.g., improved nutrition and food security from
garden crops that have been watered; whereas indirect health benefits arise from
improvements in household wealth. Not the least important, Howard & Bartram
write that in urban areas this is often essential as it may offer additional income
from small-scale sales (processing food for retail probably being the most common). It is, nonetheless, spelt out that these economic uses may compromise the
ability of the water resources to meet basic needs, either through over-consumption
[and/] or through uses leading to quality deterioration.778
What seems to be missing in the estimations of basic needs in terms of drinking
water, whether defined as water for personal and domestic uses (as in the General
Comment) or also for garden crops and the like (cf. Howard & Bartram), is a differentiation between people situated in rural, peri-urban and urban areas. Neither does
the scope of this study permit this question to be discussed, though.
3.5.3 Access operationalised via law
To be effectively achieved, rights first need to be operationalised into something
defined and preferably also measurable. The content of the right to water as described above is a starting point, but must be specified in greater detail. By framing
the rights, the relevant obligations can more easily be pictured and addressed. At
some point, commitment to make water a human right and mean it must manifest itself via non-binding objectives, policies, strategies, and planning as well as in
778
Howard & Bartram, pp. 23f.
222
hard instruments such as binding and enforceable regulation. The recognition of

the right to water in the domestic legal system has a value in itself: the political will
becomes transparent and accountability increases.
The Comment reminds of the ICESCR and states that
[i]n accordance with article 2, paragraph 1, of the Covenant, States parties are required to utilize all appropriate means, including particularly the adoption of legislative measures in the implementation of their Covenant obligations (para 45) (emphasis added).
Existing legislation, strategies and policies should be reviewed to ensure that they
are compatible with obligations arising from the right to water, and should be repealed, amended or changed if inconsistent with Covenant requirements (para
46).
In the Sub-Commissions report, the legal instrument is also mentioned:

States should at all levels of government:
Formally recognize the right to water and sanitation in relevant laws and regulations
(2.3)(c) (emphasis added).779
These requirements are expressed vaguely, with the result that States Parties have
chosen various ways of articulating the right to water in domestic law, in those rare
cases where it is implemented. COHRE mentions some twenty countries which
have to date implemented the right or taken steps to revise their constitutions or
laws: Belgium; Burkina Faso; Angola; Uganda; Ukraine; South Africa and Ecuador;
the Democratic Republic of Congo; France; Indonesia; Mauritania; Mozambique;
Namibia; Nicaragua; Paraguay; Uruguay; and Venezuela; Honduras; Peru; Algeria;
Uruguay; Kenya; and Guatemala. Several other States Parties have established legal
duties to provide access to water and sanitation. Furthermore, COHRE notes that
in India, Pakistan and Costa Rica courts interpret the constitutional right to life as
to include the right to clean water and sanitation.780 The situation in India is analysed in detail in Chapter VIII.
It is certainly important that the right to water and the ensuing obligations are
regulated. In general, regulation needs to be deliberate, clear and sufficiently precise, targeted toward realisation, and yet flexible relative to prevailing conditions.
The rights, in order to be proper and effective, must be coupled with legal remedies
such as penalties for non-compliance. Enactment, or reform of the existing legal
framework, should be subject to democratic participation. Water issues must further receive due priority in financial budgets at all levels of government.
More specifically, regulation needs to contain rules on such components as licence-seeking procedures prior to the start of harmful activities, a scientificallybased Environmental Impact Assessment and public participation as bases for de779
UN Sub-Commission on Promotion and Protection of Human Rights 2005.

COHRE et al., p. 33; cf. COHRE 2008a, p. 59. These data have not been counter-checked for
the present study.
780
223
cision-making, regular and independent monitoring, possibly also self-regulation

and control. Especially in areas where water is already scarce, policy-makers and
legislators must apply a precautionary approach. It is important that misuse of water is prevented, and that conservation and due care are promoted at all levels and
by all water users. For the right to be realised, the planning of provision and distribution also requires accurate statistics and data on the availability of freshwater. As
we will see in Chapter VIII on the conditions and situation in Bangalore, these factors can prove difficult.

3.6.1 The states responsibilities
States, as parties to the ICESCR, are accountable for implementation of the Convention or, strictly speaking, for achieving progressively the full realisation of it.
This obligation is regulated in the ICESCR itself781 and further interpreted in the
Comment in respect to water. Apart from legislative steps to ensure implementation, the necessity to establish institutional responsibility, accountability mechanisms and effective judicial or other appropriate remedies is another substantive
obligation enumerated.782 The remedy for victims of violation of the right to water
can be an entitlement to adequate reparation, such as restitution, compensation,
and guarantees of non-repetition.783
According to the Comment, the ICESCR imposes immediate obligations on the
states in relation to the right to water. Steps towards full realisation must be deliberate, concrete, expeditious and effective.784 In the High Commissioners view,
there are clear obligations on states to fulfil the right to drinking water. The scope
for interpretation of these obligations is nevertheless vast:
It is up to each country to determine what this sufficient amount is, relying on
guidance provided by WHO and others States should take steps to ensure that
this sufficient amount is of good quality, affordable for all and can be collected
within a reasonable distance from a persons home.785
Terms such as sufficient, steps, good quality, affordable, reasonable, etc. are
deliberately left open to discretionary interpretation, acknowledging the sovereignty
of each independent state to decide on internal matters such as water resources and
health.
781
According to ICESCR, [e]ach State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures (Art 2 (1)).
782
General Comment No. 15, para 45-59.
783
Ibid, para 55; cf. the Rio Declaration, Principle 10.
784
General Comment No. 15, para 17-18.
785
224
In line with the ICESCR, the Comment speaks of progressive realisation, acknowledging that this venture must be seen as a long-term objective. COHRE et al.
hold that the perfect can be the enemy of the good, and draw evidence from the
Grootboom case in South Africa. The Constitutional Court in this case reviewed a
particular housing policy that aimed to ensure quality housing for all, but which did
not even provide basic emergency housing for the homeless. The Court held:
[T]here is no express provision to facilitate access to temporary relief for people
who have no access to land, no roof over their heads, for people who are living in
intolerable conditions These are people in desperate need. Their immediate need
can be met by relief short of housing which fulfils the requisite standards of durability, habitability and stability (emphasis added).786
COHRE et al. point out that although it may seem unusual for a court to require
housing that does not necessarily fulfil the standards provided by law, such an approach is consistent with the concept of progressive realisation. Human rights
standards require that resources be utilised equitably to ensure at least basic shelter
for all as a first step, followed by progressive improvements.787
The Draft Guidelines express a similar attitude in holding that where public resources cannot guarantee high-quality services for all, States Parties should offer a
range of services, including low-cost technology options.788
In general, the obligations imposed on States Parties to achieve human rights
are to respect, protect, and fulfil. The duty to respect involves acknowledging that
the right to water also is a negative right a right to freedom, for instance in that
governments are urged to refrain from interfering with the use of existing water
sources. This includes proportional compensation when interference is inevitable.
Protection of the enjoyment of the right to water entails both negative and
positive rights. There is, for instance, a need to ensure that so-called third parties789
do not interfere with, restrict or endanger the individuals right to water through
quality deterioration; imposing social norms on who is allowed to fetch water in a
certain well; denying physical passage to a water source; demanding unreasonable
remuneration for delivery service, etc. To protect this negative right of every individual, states must take action. Among ways to achieve implementation of the right
is the enactment of an effective, up-to date and transparent regulatory system, as
related above.
A demand-side management approach is often advocated, particularly for urban areas. It starts with the insight that ever-increasing demands (locally as well as globally) simply cannot be met by increasing supplies when resources are scarce both in
absolute terms and per capita. In practice, this can mean that measures to improve
786
Government of the Republic of South Africa and others v. Grootboom and others, 2001 (1) SA 46 (CC),
para 52.
787
COHRE et al., p. 111.
788
UN Sub-Commission on Promotion and Protection of Human Rights 2005, para 6.3.
789
Third parties are defined as individuals, groups, corporations and other entities as well as
agents, General Comment No. 15., para 23.
225
water supply and other services must be integrated, coordinated, prioritised and
most of all changed at the point of consumption by raising end-use efficiency and
reducing waste. This approach is being developed as a matter of economy, technology, behaviour, regulation, organisation, etc., in the provision of water. However,
water-saving policies must be implemented without compromising water services,
and those currently deprived of water should be given more influence. Instead of a
narrow supply-fix approach, the demand-side approach has to be responsive to
local needs.790 Gordon McGranahan holds that demand-side measures should be implemented among the poor strata of society in order to improve access to water
even if (and in some cases especially if) this increases their consumption (emphasis
added). This would, not least, be beneficial in promoting hygiene and health.791
The obligation to fulfil is more closely related to seeing the right to water as a
positive right: measures to assist individuals and communities must be taken, and
strategies, policies, plans of action and water programmes need to be decided and
implemented.
3.6.2 Private providers and water vendors
Nothing in the Comment or other documents from UN bodies and agencies points
to state-governments as the ultimate provider of water: access can be realised (also)
through third parties. It is common that water utilities are publicly run or at least
owned. To an increasing extent, though, private contractors are attending to tasks
such as operation and maintenance (O&M), laying new pipes, metering and billing,
running laboratories for quality checks, and/or performing other tasks linked to the
delivery of water to connected users. In economic terms, this can raise efficiency
and profit. It may also be necessary for the public utility to outsource certain functions due to budgetary restrictions placed on them. These restrictions lead to a lack
of available investment funds that is often caused by legislation that prohibits the
utility to earn surplus funds.792
To be distinguished from the practices described is the fact that, throughout the
world, infrastructure in the sense of a water distribution network does not cover
even a fraction of all water users. Many have access to water through their own
wells, but over one billion non-connected people have to meet their needs through
other means formal and informal which renders the water unsafe or makes the
source an unimproved one. Where surface water bodies, wells and street taps are
insufficient, the remaining way of accessing water is normally through private vendors. This means paying a monetary sum for the water in a form of simple economic market. This also means that weak purchasing power results in access to too
little and/or unsafe drinking water for many millions of people, with ensuing health
problems. There is no access to water if it cannot be paid for.
790
Cf. Ray & UN-HABITAT, pp. 193, 196f; UN-HABITAT web page Priority needs.
McGranahan, pp. 1f.
792
It is not the intention to discuss privatisation of water services in this study.
791
226
A similar situation can arise when the demand from the connected consumers is
larger than the supply from the public water utility: supplementary provision of water is often needed. Apart from vendors of water in bulk, bottled mineral water for
drinking and sometimes also for cooking purposes is a thriving business.793
Private vendors are, obviously, subject to large differences in terms of price,
quality, quantity distributed, reliability of delivery, competition between vendors,
etc. Some sellers employ middlemen who transport the water, whereas others work
more directly, delivering water to the buyers homes. Most operate on a small scale
and work independently, others sell in bulk, by the tanker. The vendors mostly
carry the water in various types of container, or transport it on bicycles or carts
(animal-drawn, motorized or hand-pushed), or deliver by truck.794 Comparing jurisdictions, there are also differences in how the legislation treats private vending.
The common denominator is that the water being sold comes from underground aquifers. In addition, the sellers are typically men, as it is normally men who
own and/or control the land from which the water is pumped.795 We will return to
the question of (unregulated) groundwater pumping in the following chapter, while
the pros and cons of informal suppliers in Bangalore are discussed in Chapter VIII.
3.7 Economic accessibility

3.7.1 Defining the notion
The question of affordability is maybe at the very core of the right to water, but
must be seen from several angles. These include the financial and ecological costs
of providing the resource, the importance of pricing water as an incentive for users
not to waste it, and the /in/ability of the poorest people to pay for it. Plenty has
been written on these three major areas over the past few decades, and only the latter will be touched upon in this sub-section.
In the debate on willingness and ability to pay for water services, the human
right to water is increasingly discussed in terms of monetary costs, full cost recovery, and private water distribution with a more or less pronounced element of
profit-making. As the WHO states, [p]roviding water is never free; the water
needs to be collected, stored, treated and distributed.796 The General Comment
takes a similar, though tacit, point of departure: it sets out that water should be
treated as a social and cultural good, and not primarily as an economic good (emphasis added); economic accessibility thus means that water (and water facilities
793
This business is geared principally towards the top segment of the market; bottled water being
generally perceived as the purest form of drinking water and therefore often preferred by consumers who can afford it. However, the Centre for Science and Environment conducted very
disheartening tests in this respect in 2002, web page Analysis of pesticide residues.
794
Cf. Kjelln & McGranahan, p. 2.
795
Cf. B. Agarwal.
796
WHO 2005b, p. 1.
227
and services) must be affordable to all.797

Without context it is difficult to detect the controversy hidden in these formulations. Since the 1992 Dublin Statement on Water and Sustainable Development 798
and UNCEDs Agenda 21,799 the categorisation of water as an economic rather than
a social and cultural good has been much criticised, foremost among those working
with the South/developing worlds conditions. The Dublin Statement was adopted
in 1992 by the International Conference on Water and the Environment, a nongovernmental meeting of 500 experts held in advance of the UNCED Earth Summit in Rio de Janeiro. Its four Guiding Principles have had great impact, although
not issued by a representative, authoritative decision-maker. Much of their contents
were consolidated into Chapter 18 of Agenda 21 during the subsequent Earth
Summit. The fourth and often criticised Guiding Principle states that
[w]ater has an economic value in all its competing uses and should be recognized as
an economic good. Within this principle, it is vital to recognize first the basic right of all
human beings to have access to clean water and sanitation at an affordable price. Past
failure to recognize the economic value of water has led to wasteful and environmentally
damaging uses of the resource. Managing water as an economic good is an important way of achieving efficient and equitable use, and of encouraging conservation
and protection of water resources (emphasis added).800
The involvement of economics in water management includes the claim that water
markets can provide the means for allocation, distribution, preservation, etc. Conventionally, though, the word market assumes the prevalence of a natural price as
well as the possibility to compare information, an ultimate choice on the buyers
side, and a laissez-faire policy.801 Similarly, an (economic) good signifies a commodity; an article of commerce.802 It is often held that the Dublin Principles reflect
neoliberal political and economic agendas rather than universal principles, especially in so far as they advocate a removal of subsidies, commodification of resources, and privatisation.803
The General Comment, nevertheless, also lays down that
[t]o ensure that water is affordable, States parties must adopt the necessary
measures that may include, inter alia: (a) use of a range of appropriate low-cost
techniques and technologies; (b) appropriate pricing policies such as free or low-cost
797
General Comment No. 15, para. 11; 12(c)(ii).

International Conference on Water and the Environment.
799
UNCED stands for the UN Conference on Environment and Development, a.k.a. the Rio
Summit, a.k.a. the Earth Summit. In Agenda 21, it is foremost Ch 18 which is of interest here.
800
International Conference on Water and the Environment.
801
Cf. Dellapenna, and Adam Smiths theories.
802
According to microeconomic theories, a public good is non-rival, meaning that one entity
benefiting from it e.g., consuming it does not diminish the benefit to another entity. Light, air
and defence are examples of public goods that are not reduced in amount due to consumption.
Water of potable or like quality is, however, a matter of competition. It cannot therefore be
talked of as a public good (but a common good).
803
Ferguson & Derman, pp. 4f.
798
228
water; and (c) income supplements. Any payment for water services has to be based
on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened
with water expenses as compared to richer households (emphasis added).804
In other words, the Comment does not hold that water should at all times be free
of cost, but it mentions this as a possibility and requires whatever pricing policy is
chosen to be appropriate and equitable. The Special Rapporteur said on the issue of
affordability that states should ensure appropriate pricing policies, including flexible
payment schemes and cross-subsidies to low-income users and poor areas. The
subsidies should normally be used for connection to distribution networks, or for
construction and maintenance of small-scale water supply facilities.805 It seems fair
to conclude either that the Special Rapporteur and other UN experts involved decided to dissociate themselves from the fourth Dublin Principle and Agenda 21 in
this respect or, alternatively, that the rights-based approach has made a true impact
since the beginning of the 1990s. Suffice it to note here that subsidised tariffs or
at the very least financial support of initial connection costs are indispensable. We
will return to this question when looking more closely at the situation in Bangalore.
3.7.2 Are the poor paying more?
It is often contested that the poor are paying more, as water bought from private
providers costs more than that piped to peoples homes. Very few commentators
consider this figure on a per-litre basis an important distinction to make.806 Large
groups of water users who access water in this manner, i.e. they pay per litre (or
rather, per receptacle of approximately 10-15 litres), lack at least two things: storage
capacity and purchasing power.807 Both these factors lead to the total quantity of
water bought and consumed each day being lower than the basic requirements that
researchers and policy makers regard as a minimum.
In other words, the very poor segments of society often have only small sums
available to pay for their drinking water, and the method of payment is cash-ondelivery as opposed to advance payments. Consumers such as day-wage labourers
and other incurrent wage-earners can seldom budget their personal expenditure
even in the short run, and can consequently seldom commit to fixed payments (advance or accrued) for water supplied over a period. The WHO has observed that
[m]any people earn money on an irregular basis, which inhibits them from entering into long-term regular financial commitments that might be cheaper in the long
run.808 The matter is one of ability to pay, not willingness.
804
General Comment No. 15, para 27.

Sub-Commission for the Promotion and Protection of Human Rights 2005, para 6.1-2.
806
Satterthwaite & McGranahan, p. 26, have seen this.
807
A third factor can be enough time during daylight to fetch the water; and a fourth the strength
to carry it over often large distances especially when under-nourished children do the fetching.
808
WHO 2003, p. 16.
805
229
In terms of storage capacity, slum areas are inherently cramped and with little
space per person. Population density is extremely high and a dwelling typically contains a household of more than one family. In Dharavi in Mumbai, India allegedly
Asias biggest slum 12 inhabitants sharing a space of some 8 m2 (90 square feet) is
nothing uncommon.809
The above is further substantiated by the sachet revolution that has taken place
in India during the past ten years or so. The sachets contain a portion of shampoo,
detergent powder, cough syrup and like commodities needed in the modern household, but which millions of households cannot afford to buy in bulk. The packages have thus been heavily reduced in size by the manufacturers, and usually cost
round Rs.1 each. The idea has resulted in a win-win situation for both seller and
buyer and follows from the demographic circumstance where most households can
only allocate limited monetary resources at any point of time, and have limited place
to store normal-sized containers.
Access as a function of affordability is mainly addressed through government
policies and the public utilities made responsible for providing piped water by offering it at a subsidised cost. The question of water being a human right and therefore to be provided free of cost has been implemented to some degree in one
country South Africa where a progressive programme has been adopted.
3.7.3 Outlook: free water in South Africa
The state-government of South Africa has, at least on paper, begun to realise fully a
human right to water. Apart from statutory law laying down the right as such, there
is a policy on the provision of free basic water, amounting to 25 lpcd or 6 kilolitres monthly per household (of, on average, 8 people). The legal framework on
this issue concerns the setting of tariffs for water services, and the relevant provisions will here be illuminated as an example of how a right to water can be codified.
Just as is the case in India, water services is an obligation delegated to localgovernment level, whereas the management of the countrys water resources as a
whole is retained by the national government. The river systems, almost all of
which cross political boundaries, are therefore integrated in terms of management.
According to the Constitution of the Republic of South Africa, [e]veryone has
the right to have access to sufficient food and water; and [t]he state must take reasonable legislative and other measures, within its available resources, to achieve the
progressive realization of each of these rights (Sec 27, sub-sec 1(a), 3)(emphasis
added).810 To this is added an objective of local government: to ensure the provision of services in a sustainable manner (Sec 152)(emphasis added). The Municipal
Systems Act contains provisions regulating a tariff policy on the levying of fees for
municipal services (Sec 74, 75).811
809
Cf. Anonymous 2007r.

Act No. 108 of 1996.
811
Act No. 32 of 2000.
810
230
The Water Services Act supplements the constitutional provision on the right to
access.812 The main objects of this Act are to provide for
(a) the right of access to basic water supply and the right to basic sanitation necessary to secure sufficient water and an environment not harmful to human health
or well-being;
(b) the setting of national standards and norms and standards for tariffs in respect
of water services;
(c) the preparation and adoption of water services development plans by water
services authorities (Sec 2).
The Act defines basic water supply as the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of
water to households, including informal households, to support life and personal
hygiene. It also lays down that every water-service institution must take reasonable
measures to realise these rights; and every water-service authority must, in its waterservices development, plan provide for measures to realise these rights.813 In addition, a provision in Sec 4 runs:
(1) Water services must be provided in terms of conditions set by the water services provider
(3) Procedures for the limitation or discontinuation of water services must
(a) be fair and equitable;
(c) not result in a person being denied access to basic water services for nonpayment, where that person proves, to the satisfaction of the relevant water services
authority that he or she is unable to pay for basic services (emphasis added).
It was not until 2001 that the right to a certain amount of water was effectively introduced (prescribed), with the Regulations Relating to Compulsory National
Standards and Measures to Conserve Water issued by the Department of Water Affairs and Forestry under the Water Services Act.814 These Regulations provide that
the minimum standard for basic water supply services is a minimum quantity of potable water of 25 litres per person per day or 6 kilolitres per household per month,
available within 200 metres of a household, and with an effectiveness such that no
consumer is without a supply for more than seven full days in any year (Sec 3(b)).
The setting of tariffs is a responsibility of local government, which is to comply
with a clear framework of norms:815 [t]he Minister may, with the concurrence of
the Minister of Finance, from time to time prescribe norms and standards in respect of tariffs for water services; No Water Services Institution may use a tariff
which is substantially different from any prescribed norms and standards (Sec
10(1, 4)). In January 2001, the South African Cabinet approved a programme of
812
Act No. 108 of 1997.

Water Services Act, Sec 1(iii), 3(2-3)
814
Regulations Relating to Compulsory National Standards and Measures to Conserve Water
(2001).
815
Department of Water Affairs and Forestry, Republic of South Africa, pp. 7, 9.
813
231
implementation of six kilolitres of safe water per household and month for free.
This was to be funded using a combination of the equitable share of revenue of
local government and internal cross-subsidies from appropriately structured water
tariffs in a manner which best reflects the specific situation in the respective local
government area.816 Households that use large amounts of water thus subsidise the
first six free kilolitres by paying an increasing tariff for every additional block of
water used.817
The programme for free basic municipal services water for domestic use provided at no charge by local government is probably one of the most progressive
in the world. However, it has regularly been reported how hundreds of thousands
of poor households are disconnected from private suppliers networks. Some reasons are the lack of infrastructure and of funding from the local governments to
the private companies involved, and that [c]ross-subsidisation has not appeared to
be a viable source of funding especially in rural communities where there are not
enough high volume water users.818 High connection fees and the use of pre-paid
meters also seem to make access impossible for the poorest.
The policy promising a basic amount of free water for all is thus not yet implemented in full throughout the country and it is not legally binding as such. The
prohibition against disconnection as laid down in the Water Services Act is also not
formulated in such a way as to protect water users, seeing that it puts the onus of
proof on the person who cannot pay that he or she is unable to pay. 819 The case of
South Africa also shows that a basic right to 25 lpcd is generally too little if use in
excess of this limit is so costly that users risk disconnection for inability to pay.
3.8 Summing up
The discourse on a human right to water has grown louder and received all the
more attention since General Comment No. 15 was adopted in 2002. The Comment, an official and authoritative interpretation albeit not legally-binding, is welcomed as a result of the call for recognising water as a human right. Subsequent
documents from various UN organs have pointed in different directions in terms
of acknowledging access to water as a right. Seeing or making water a self-standing
right would result in a Special Rapporteur being appointed, with a mandate to press
816
Ibid, speech by Minister Ronnie Kasrils at the Presidents debate held in Cape Town, February
14, 2001. The speech is the only source found on the decision to introduce free access to 25 lpcd.
817
Gowlind-Gualtieri, p. 8.
818
Ibid.
819
However, it seems as if a court has decided on the contrary in one case; Residents of Bon Vista
Mansions v. Southern Metropolitan Local Council [2002] (6) BCLR 625 (W), as referred by GowlindGualtieri, pp. 11f. The onus rested on the local authority to show that it had legally valid grounds
for disconnecting the water supply and had acted in compliance with the Constitution and the
Water Services Act. Disconnection of water supply would constitute a prima facie breach of the
states constitutional duty to respect the right of access to water, and that procedures employed
to effect a disconnection have to be fair and equitable.
232
the issue and its implementation further. This is also what many State Parties are
reluctant to.
In terms of the content of a right to water, it is applicable to drinking water for
personal and domestic uses, which includes personal sanitation, washing of clothes,
food preparation, personal and household hygiene. The water is to be safe and sufficient and should correspond to quality guidelines of the WHO. The quantity necessary is differently estimated but generally, 20 lpcd is seen as a minimum for basic
needs. This amount is, however, equivalent to requirements in the short run or presupposes that users have access to other sources of water for, e.g., sanitation, hygiene and other domestic purposes. The water purchased from private vendors is
not regarded as coming from an improved source, as there is no regulatory
framework to ensure water quality in most countries, and because the price often
prohibits this water from being used for hygiene and like uses.
As Langford has observed, the Comment is neither radical nor conservative
but a reasonable interpretation of the Covenant that was grounded in international
law and practice.820 It has demonstrated a practical utility; and recognition of the
human right to water has had an effect. Increasing pressure is now being put on the
UN system to define the roles and responsibilities of state governments, and on the
acknowledgement and implement of a right to water. Numerous guidelines have
been issued by expert Rapporteurs and NGOs in order to aid the realisation of access to water. These have functioned to improve the general picture of what is
meant and not meant by the human right to water. The documents adopted can
provide governments with blueprints and agreed frameworks for determining standards, NGOs with arguments, and individuals with legitimacy and strength to pursue their claims.
The idea of human rights is essentially about identifying what each human being
needs to lead a minimally good life. It has been shown here how this idea is morally
based and, in the view of many, has its genesis in the theories of natural law and
rights. As such, human rights should exist and apply universally to people in all
countries and cultures in their virtue of being human whether or not these rights
are recognized and implemented by the legal system or officials of a country. A
new human right can also be the result of a deliberate political movement putting
the issue on the agenda and pressing for it to become legally valid. By running
Nickels test we find that water is a perfectly justifiable member of the humanrights family. This is not least because it relates to a very special issue of concern,
namely a sine qua non without water, there can be no well-being or life, no development or growth.
820
Langford, p. 433.
233
When Salman M.A. Salman and Siobhn McInerney-Lankford analyse General

Comment No. 15, they argue that the Committee based its recognition of the human right to water on three devices, namely
derivation and inference from the ICESCR mainly through statutory interpretation of the word including;
analysis of waters centrality and necessity to other rights under the ICESCR (i.a.,
Arts 11 and 12) and other human rights it is instrumental for survival; and
pointing to prior recognition the existence of a right to water in various binding
Conventions such as the CEDAW, and according to soft law documents including Mar del Plata and previous General Comments.
Salman & McInerney-Lankford summarise that [t]hrough these three analytical
models, the Committee has provided a solid basis for recognizing a human right to
water.821 I subscribe to this multiple approach, and hold that a self-standing right
to access safe water must apply to certain rights-holders (foremost, children and rural women) simultaneously as a universal right can be derived from, i.a. ICESCR.
The following from the UN High Commissioner is, however, important to stress:
[T]he debate is still open as to whether access to safe drinking water and sanitation
is a human right, notably in relation to whether access to safe drinking water is
a right on its own or whether obligations in relation to access to safe drinking water
and sanitation are derived from other human rights, such as the right to life, the right
to health, the right to food or the right to an adequate standard of living.822
In the High Commissioners view, though, international human rights law entails
clear obligations in relation to access to safe drinking water.823 Therefore,
[g]iven the clarity of these obligations, the open debate as to whether the human
right to access safe drinking water is a stand-alone right or is derived from other
human rights should not impair the recognition of access to safe drinking water as a
human right (emphasis added).824
It is interesting to note how the rights-talk has become obligations-talk in several of

the UNs recent resolutions and decisions. It may be perceived as a less political
way of framing the relation claim (right)duty. The maxim no right without remedy is also not applicable when the terminology is inverted. A duty-bearer is still
related to rights-holders, though, for the benefit of their interests. Just as it can be
held that a bundle of rights apply, so does a bundle of obligations: to respect, protect and fulfil.
Regardless of how solid and convincing the arguments may be, there is a lack of
political will to talk of access to water as regulated in international human rights
law. The resistance is prevalent among governments, in various UN organs, etc.
821
Salman & McInerney-Lankford, p. 64.

823
Ibid, para 47.
824
Ibid, para 49.
822
234
There is also what can be termed legal stubbornness: because a right to water is not
expressly posited in any of the general international human-rights instruments of the
UN, it is dismissed. The latter group is employing a narrow, black-letter view of
how a right is to be articulated to be valid, but of what avail?
A reason at least to the political resistance is presumably the fact that peoples
rights are intimately linked to the duties and obligations they impose on others,
predominantly the state and its finances. There is a moral justification in imposing
responsibilities on addressees such as the state, to perform certain functions for the
benefit of the community at large as well as for individual well-being.
There is, however, yet another reason for the reluctance of recognising water as
a right: the possibility of obligations placed on jurisdiction or even states to share
precious drinking water resources. For instance, Canada reportedly blocked the
Council from recognising water as a right in its 2008 resolution partly for fear this
would have exposed or even forced states to export water to drought-plagued regions such as some in the U.S.A.
What do we gain by talking of access to water as a (human) right? As a concept,
the right to water has a strong symbolic value and appeals to our sense of justice,
equity, and reasonability. Practically all human groups share a moral norm like that
which Hinduism and Islam stipulate: that water cannot be denied to anyone. The
right to water is therefore not merely aspirational in the sense of an abstract goal or
policy that governments can agree to strive towards achieving: the right stands sufficiently firm but needs to be fulfilled according to what the context requires. To
acknowledge this is the first step to realising its content. The actual steps of operationalisation may, however, be taken in a progressive manner with due consideration of the general level of development, including that of whether modern infrastructure exists, and of the availability of water per capita from different sources.
The most common criticism of rights-language is that it is simply rhetorical and
loose talk. Although declaring that access to water is a human right does not solve
any problems per se, a powerful moral claim is at stake. Talk in terms of rights can
create awareness among those who do not feel concerned by the vital importance
of water to those who lack it in sufficient amounts. Rights-talk can make visible
how health, dignity, potential for development, even survival depends on safe access to clean water. Discussing water as a human right necessitates a further specification of why and how we can share this scarce resource in an equitable way, and
can motivate people to endorse means of contributing to this end by accepting rationing, increased pricing, mandatory rainwater harvesting, dual water systems, etc.
Assuming that a human right to water exists, the state governments role as provider and ultimately responsible for ensuring the right is fundamental. The mandated, obligated public utilities which function as water suppliers need to operate
within plain and unambiguous frames. As we will discuss when exploring the situation in Bangalore, this is often where the state fails and supplementary alternatives
and strategies become necessary.
235
Chapter VI
Water as a Property Right
1 Introduction
In ensuring everyones right to access, issues of property rights (and obligations)
are inevitably involved. The individual right to property is also a fundamental human right, acknowledged in the Universal Declaration and the European Convention on Human Rights as well as in numerous countries constitutions. 825 It is therefore often necessary but difficult to strike a balance between the property holders interests and the access to water from various sources and through various
agencies. A prerequisite for sound decisions here is good and up-to-date knowledge
of the prevailing law. This sub-section seeks to contribute to such knowledge.
There are etymological links between (the English) terms property, proper,
appropriate, and propriety, underscoring the assertion of a value-laden complexity of inter-relating nuances of property talk.826 The conception of property concerns the organisation and legitimation of rights (and obligations),827 and it generally denotes rules and systems that govern access to and control over things and
objects. The things (and objects) are such that are regarded as valuable such as
825
Cf. the Universal Declaration of Human Rights, Art 17. As noted above, India does not perceive the right to property as a fundamental one. Nonetheless, Art 300A provides that no person is to be deprived of property unless this is regulated by law a Parliamentary decision is thus
required.
826
Gray & Gray 1998, p. 33.
827
Benda-Beckmann, Benda-Beckmann & Wiber, p. 2; cf. Gray & Gray 1998, p. 33.
236
land, resources and products, some of which are in immaterial form. They form entities to which the right-holder has a title, e.g. ownership, or an interest, e.g., an
easement (servitude). Justification of property is often based on its being a natural
right, as Locke held.
The discussion of property outside the narrow legal framework generally contains aspects of identity, relationships, ideology, labour, class, wealth and power, as
well as the insight that the notion of property mirrors how different cultures view
communities and natural resources, including water. Many non-Western legal systems vest property rights in groups rather than in individuals,828 and in men rather
than in women;829 at least this has been the case. We live in a time when markets,
private property and commoditisation of goods are in.830 The answer to whether
property is better in private or common/public hands is a matter of beliefsystems, political ideology, culture and values.831 It is moreover related to issues of
management, conservation, equity and distribution, in the short term and in the
long term.
This applies fully in regard to water. Many claims of exclusive ownership clash
with regulations intended to preserve water resources for sustainable development.
Property regulation is therefore important from several different angles when determining questions of access to water. Property rights (including duties) are of
wide relevance both to whether a public body or private vendor arranges the supply, or whether one relies on ones own well or surface-water source. Disagreements about property rights and the use of water are likely to emerge because resource-use matters to people. Such disagreements are particularly serious where the
resource is a fundamental need but scarce and competed for.832
There is no short and general definition of property. Hence many questions
arise when we think of property rights in, over, against, etc., water. What kind of
thing is water, in the first place, and is it at all capable of ownership or other interests like other goods? What property rights can be enjoyed? How are water property rights acquired and how far-reaching are they? Do the theories and/or material
rules on water property differ depending on the legal system, and how? How are
groundwater rights coupled to land, and can they be decoupled? Who can tamper
with groundwater yields, and who can prevent others from doing this? 833 And can
these rights be transferred as such, i.e. alienated from the rights to the land through
(under/over) which it flows? The focus here will be on property rights in ground828
This has been described and analysed by numerous writers. Cf. Benda-Beckmann 2001, p. 50;
Benda-Beckmann, Benda-Beckmann & Wiber, pp. 2f.; Hann.
829
B. Agarwal.
830
Cf. Benda-Beckmann, Benda-Beckmann & Wiber, pp. 1f.
831
Laura Underkuffler, p. 16, partly departs from an understanding of property as the system of
rules that can govern control of natural resources such as land, trees and water. We recognise this
way of reasoning from Hardins view on the commons.
832
Cf. Waldron 2004.
833
Cf. the anonymous writer who asked Who Owns the Clouds? in an issue of Stanford Law Review in 1948.
237
water, with an analysis of ownership, easements and other relevant aspects. This
focus is warranted partly because the transfer of (ground) water from rural hinterland to city is of ever-increasing significance, and partly because the area is not sufficiently researched.
In the following, a general account of property law will be given, before water
can be placed in the scheme. The Indian water property rights regime cannot be
understood unless it is set against the historical background: old Roman principles,
English law, and the law as applied in parts of the U.S.A. are all of certain importance.
2 Property in the language of law

2.1
The complexity of the subject
Contemporary life requires much from the legal system regarding regulation of
property think, for instance, of information on the Internet, and water as a good.
Many scholars refer to property as a typical instance of a social and political institution, which I deem relevant in the sense that it is a firmly established phenomenon
in (Western) society, the practice and control of which has long been regulated in
various ways. Simultaneously, property is a socially constructed idea, also from the
legal perspective. It has meaning only when human relations, or conflicting demands among people, are at stake,834 such as in the competing claims over scarce
water resources. Property means ownership and other associated rights, often referred to as a more or less abstract bundle of rights. Simultaneously, the word
property can denote that which is owned, i.e., the thing or item which is someones
property. The vocabulary itself can be an obstacle to making sense of the topic.
The concept of property is thus difficult to grasp and to convey, much due to
technicalities developed over centuries. Many aspects of land law need to be explained in order to lay a foundation for the understanding of water as property .
This is particularly so in relation to groundwater. As we will see, much legislation
came at a time when there was neither scientific knowledge to fully understand a
resource such as groundwater nor the need to explicate various things in legal
words. Starting in the thirteenth century and especially during the era of industrialisation, English law needed clearer rules on neighbourhood relationships and human conduct for the use and misuse of water. The courts had to struggle to lay
down precedents and came to establish a doctrine which is still of great importance.
This has been analysed in detail by Joshua Getzler, and we will return to it shortly.
Amongst the many forms of property rights, the law relating to land exhibits
special characteristics, and is also a very complex subject for other reasons. One is
that traditional not to say ancient concepts and principles are still employed, at
834
Underkuffler, p. 12. Gray & Gray 2006, p. 4 point out that property is a network of relationships between individuals in respect of valued resources, cf. Penner 1996, p. 712 and cf.
Hohfeld.
238
the same time as the requirements of our modern, yet highly unequal, society are
rapidly transforming. One result of this is that the nomenclature involved is rather
technical which does not make the law easier to comprehend or convey.
Another reason for the complexity of land law is that while most property law
in jurisdictions all around the world can be traced back to the Romans, there are a
number of interpretations, instruments and insights that exist only in common-law
countries and several of these bear no resemblance to notions used in civil-law
systems. This has resulted in countless mixed legal systems now having some, but
not all, ingredients from both common law and civil law, but also their own domestic (legal) innovations. The law of torts is the most obvious example of a legal concept that is of major importance in common-law countries, whereas there is no
equivalent in civil law.835 Further, English property law divides all that can be subject to property into a number of core categories, which also lack direct comparison
in other jurisdictions. Bernard Rudden has described how property law is characterised by inconsistencies, irregularities, oddities, long lists of cross-references, and
gaps. This is not least evident when the two legal systems are put side-by-side, and
when specific codes, acts and bodies of case law are compared. As Rudden remarks, it is unlikely that we are any wiser than our forebears, for the rules and
rituals they devised must have had reason in their day; perhaps it is our unthinking
repetition that turns them into riddles.836
In addition, many philosophical, political and economic considerations have
been incorporated over the centuries during which the law has gradually formed.
Some are still relevant today, whereas others would be better if reformed. In other
words, much theoretical and applied property law would benefit from some unthinking and back-to-basics reasoning to rephrase the question What is property?
These problems not only hamper every contemporary writers efforts to make the
system and the applicable provisions clear and understandable to the reader; they
are also essential for the very perception and restructuring of water-as-property.
The scholars interested in property rights in relation to water resources from the
purely legal point of view are predominantly American, and their writings relate to
the dichotomy between the Eastern and the Western States different regimes on
water rights.837 They are of some, yet not major interest here. Of importance to the
Indian situation is, naturally, English common law with its landmark precedents,
though it is not entirely clear what influence these precedents have in India today.
2.2 Property as a bundle of rights

The idea of seeing property as a bundle of sticks that can be divided is held to
combine Hohfelds analysis of rights and the description of the incidents of owner835
In common-law jurisdictions, tort refers to a civil wrong recognised by private law as providing a cause of action justiciable in the courts and entitling the injured party to a remedy, usually
damages.
836
Rudden, p. 81.
837
I.a., Joseph Sax; Carol Rose; Eric Freyfogle.
239
ship, i.e. the right to possess, the right to use, the right to capital, the liability to
execution, the immunity from expropriation, etc.838 For instance, the U.S. Court of
Appeals has said that, in civil law, what together constitutes full ownership of
property comprises three sub-bundles:
1. usus the right to use or possess, i.e. to hold, occupy and utilise property;
2. abusus the right to abuse, or alienate, i.e., transfer, lease and encumber it;
and
3. fructus the right to the fruits, i.e. to receive and enjoy the earnings, profits,
rents and revenues produced by or derived from the property.839
The different incidents of property that exist are comparable with a catalogue, or a
list, of rights.840 The catalogue defines the power which one can have over objects,
both as to duration and extent of enjoyment.
Although J.E. Penner holds that the picture of property as a bundle can be seen
as the dominant paradigm, he also stresses that it is not by any means an explanatory model. Rather, it represents the absence of one, as there is neither a canonical
formulation of what the bundle-idea is, nor any clear theory or even a set of propositions in regard to property being a bundle of rights, or a clear methodology developed for dealing with property issues in such a way. Courts decide whether
something is property, or can or should be treated as property, but without elaborating on the legal concept other than superficially. By employing the bundle of
rights-picture the courts as well as practising lawyers and academics avoid facing difficult questions about the nature of property.841
The rights that come with property are connected, but also correlate, to obligations that fall on others and which (may) inhibit their choices and actions. Penner
once more:
[O]wnership of a car should not be regarded as a legal relation between me and a
thing, the car, but as a series of rights I hold against all others, each of whom has a
correlative duty not to interfere with my ownership of the car, by damaging it, or stealing it, and so on (emphasis added).842
A bundle of rights includes incidents of property, rights that relate to or depend

on a certain property right. The obligations that ownership entails include a duty of
care and liability for damage or injury caused to others (and sometimes also injury
caused by others) and which arise as a consequence of or by means of the property.
Again, we can trace the roots to Lockes idea of natural rights; no one ought to
838
Penner 1996 with references, pp. 712f.; Underkuffler, p. 12.

Rodrigue v. Rodrigue, 218 F.3d 432 (5th Cir. 2000).
840
Underkuffler notes that this approach raises questions: does the idea of property determine the
list of things that are property, or is it the list of things that itself defines what property means?
For instance, do we consider certain rights in things to be transferable because (in common
practice) they are property, or do we consider those rights in things to be property, because they
are (in common practice) transferable?, p. 13.
841
Penner 1996, pp. 714ff.
842
Ibid, p. 712.
839
240
harm another in his life or possessions.843 Hence property is not only about As
rights, since she or he must also pay due regard to neighbours B, C, and Ds rights.
In modern welfare societies, limits to everyones property rights and obligations
will therefore be drawn after balancing interests in freedom, security for economic
investments, long-term protection of resources, etc., and weaker social groups will
need to be duly protected.
2.3 Property as a natural right

Property is traditionally explained as a natural right, and as indicated this is often
with reference to Locke. When mixing ones labour with what is removed (extracted) from nature, one joins to it something that is ones own, and thereby
makes what is removed ones exclusive property. No-one else can have a right to
that which is once annexed to the natural resource, at least where there is enough,
and as good, left in common for others.844 There has been much debate over the
interpretation of Lockes words, with different limits to the creation and holding of
property, such as in the so-called sufficiency criterion quoted. Did Locke mean that
when there is scarcity and competition, exclusive property rights cannot ensue from
labour? And what thing out of the state that nature has provided, and left it in
can labour convert into private property? Is removal necessary?
Blackstone considered private property as a personal, absolute right to which
every man was entitled and which was vested in him by the immutable laws of nature. The paramount natural right of property involved free use and disposal of all a
mans acquisitions, without any control or diminution. The principal aim of society
and the laws enacted by and for it was to protect every individuals enjoyment of
such rights. Human (positive) laws therefore function as exceptions from the principle of absolute property rights; natural liberties have been given up by individuals, according to Blackstone.845
Blackstones view of legal (positive) rights echoes the Lockean construct of a
social contract which exists to protect the ideal of natural rights to life, liberty and
property.846 Blackstone used a fiction of implied consent to the expropriation of
scarce resources: collective action by the state was justified by social purposes. In
the discussion of land and water use, consent appears in combination with occupation, as a dual theme.847 Occupation was considered the natural source of a rightholding title, and thus of ownership. Getzler points out how the occupation argu-
843
The state of nature has a law of nature to govern it, which obliges every one: and reason,
which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions, Locke 1689, Ch II, Sec 6
844
Ibid, Ch 5, Sec 27.
845
Bl Comm Vol I, pp. 123f., 144; Getzler, p. 158; cf. Posner 1976, p. 574..
846
Positive rights were in Blackstones vocabulary relative or social rights. Getzler, pp. 158f.
847
Bl Comm Book I, Ch 1, pp. 129, 138ff., Book II, Ch 1 p. 2, and Getzler, pp. 158f.
241
ment also coincides with what Locke wrote: occupancy itself was a method of mixing ones labour into a thing, and thereby appropriating it.848
Property law thus has many roots in the theories of natural rights, and the perception of private property in water is very much characterised by this. In the following sub-section, one of the forms of property rights ownership is analysed
in some detail.
3 Property in the form of ownership

3.1
Historical background
3.1.1 Roman principles and common law

The ideas and law of property have developed over a long period and the main historical roots are, with some even older exceptions, traceable back to Roman
times.849 Doctrines of that time later formed the basis of civil law and the European
legal traditions.850 Though common law departed from Roman law at an early stage,
support can still be sought in the latter where common law is silent and a Roman
rule can fit modern circumstances.851 A more important role for the understanding
of property is, however, played by the commentaries and doctrines published by
authoritative legal scholars, here foremost Blackstone but also Edward Coke, who
was Chief Justice of the Kings Bench in England at the turn of the seventeenth
century and keen to develop common law in England.852
Several types of property rights were recognised by the Romans. The most absolute and full of these was dominium, originally meaning absolute ownership of
land. The owner hence had complete rights to use and dispose of the land, and/or
exclude others from his property at his or her pleasure. Dominium comprised both
the legal title and the rights to possession and control.853 The doctrine of ownership
included certain basic ideas, e.g. that original acquisition of a thing not already
owned was a direct source of (creating) ownership.854 In civil law, dominium later
came to be re-defined so as to denote a sum of rights over land, thus both material
things and intangible rights and interests.855 In common law, the dominium defini848
Bl Comm Book II, Ch. 1 p. 7; Getzler, pp. 161f.; Locke 1689.

In the academic world, references are still made to the legal writings of authorities such as
Gaius and Justinian, who published in C.E. 130-180 and C.E. 529, respectively.
850
Most apparent examples are the French Code Civil and the German Brgerliches Gesetzbuch.
851
Cf. Tindal CJ in Acton v. Blundell, p. 353.
852
There are naturally a number of relevant scholars, doctrines and jurisprudential theories that
cannot be considered here. I have also omitted to describe most of the Anglo-American development and how it influenced common law in England (and, thereby, India).
853
Art 544 of the French Civil Code reflects this approach: Ownership is the right to enjoy and
dispose of things in the most absolute manner, provided they are not used in a way prohibited by
statutes or regulations.
854
Getzler, p. 51.
855
Getzler, p. 74.
849
242
tion was also acknowledged, 856 although this system traditionally shows caution regarding the powers of ownership, ideas of equity, reasonableness and the bundle of
rights came to balance the rights that could be enjoyed.
The ownership concept is more or less intimately linked to that of possession
which, in common law, is a property right as such. Possession involves several
conditions that must be fulfilled simultaneously: physical occupation and effective
control over a tangible thing best compared with sitting on it are two. Determinant factors for these conditions are both whether a person is able to control access to the thing, and that the possession is of a kind of which the thing is capable857.
However, the possession is legally incomplete without an intention to possess the
thing, and such an intention often precedes the factual control in time. It becomes obvious that water is problematic in the sense of possession, as opposed to
a piece of land. In its natural, liquid state, water can only partly be seen as a fixed or
as a permanent thing, and the supposed rights-holder may therefore be seen as incapable of controlling it. However, water is material and can without doubt be a
good, subject to transactions once captured. As we will see, different law applies to
water in a man-made pond or in canals from it, compared to water in a river, or
rainwater, or water in aquifers, or water somehow contained in a receptacle or in a
well.
An important feature of Anglo-American land law is that land is not said to be
individually owned. This is partly due to the feudal history of the law the Crown
or the state is considered to be the ultimate owner of all soil and holds the land either directly or indirectly.858 In the European civil-law tradition, things are either
subject to full ownership or a limited property right (ius in re aliena) on the one
hand, or remaining ownership on the other hand.
The practical significance of the difference between (English) common law and
civil law is generally not that great today both are codified to a large extent.
3.1.2 Limitations to property rights
Legal attributes of land ownership include, first and foremost, having a certain portion of the earths surface, and, accordingly, the right to use that surface. As a general point of departure, a landowner has far-reaching rights to possess his or her
property and to do whatever he/she pleases with it, including using, enjoying, dealing with, disposing of and discarding, destroying, retaining, and even neglecting it.
He or she can also decide to alienate the property and separate things attached to
856
Getzler, p. 50, writes that the notion of dominium was an abstract model of ownership alien to
the feudal land law of England.
857
Cf. Subha Rao, p. 38 with court cases referred to.
858
Land is said to be held of the Crown in England and Wales. The unit of ownership is thus
not the land itself, but the estates and interests that have been artificially created in the land. A
subject, i.e., a physical or legal person, can only own titles or interests e.g., an estate in the
land or fee simple during a certain period of time. Cf. Megarry, p. 27.
243
the land, making them into movables (cf. below). The owner also has the right to
exclude others from interfering and trespassing.
There tend to be two kinds of restriction on ones use of property: those imposed by law in the various interests of society, and those that are encumbrances
on the property due to, e.g., a mortgage linked to a loan where the property is a security for the lender. Full ownership may also become restricted due to an agreement or by prescription, where the latter requires that a certain time has lapsed.859
In modern legal systems, many aspects of the use of the land have become regulated by the law-maker in order to limit the extent of the entitlements that a property rights-holder can legally claim. It is difficult to imagine what completely unlimited ownership of some thing would mean today.
Legal restrictions and qualifications have developed over time along with increased societal demands for consideration also of the rights of others around the
property holder: there is a duty of care to be set against the maxim sic utere. With
improved knowledge and awareness, natural resources have increasingly become
subject to government-imposed rules on use resulting, e.g., in the requirement in
some jurisdictions that a permit is needed even to take out large amounts of timber
or water from ones own estate. Doctrines and common law, as modified or supplemented by statute, have contributed to limit the ways in which land ownership,
and the attributed rights, were once conceived.
Land ownership as such hence does not include or entail a right to do something that would negatively affect the neighbours land even with the best of intentions, and even if the action were perceived as necessary in relation to ones
land. Without consent from the neighbour, work carried out on ones own land but
affecting anothers could amount to actionable trespassing, and the neighbour
would be entitled to bring a lawsuit for recovery. Conversely, where consent (valid
agreement) is deemed to exist, the parties are subject both to rights and to burdening obligations.
3.2 Classification of property

A classical distinction applies between things and items that are corporeal (physical,
material, tangible) and what is incorporeal (immaterial, intangible). Different principles and rules apply to these two groups. The former consists of concrete matters
that one can sense (typically land but also air and water and objects). Incorporeal property consists of rights and other constructs of law that are non-physical
(typically an idea, a written text, a computer program). Nonetheless some legal figures and concepts lie on the verge between the two.860 The group that we will deal
with here consists of things corporeal.
859
An important type of prescription is that which results in that an easement right (servitude)
comes into existence, more on which below.
860
Cf. intangible personal property, which is representative or evidence of value: money, deposits,
credits, shares, bonds, notes, other evidence of indebtedness or property interests. These are also
244
These things are, in turn, divided into two major categories or classes:
1. real property, also called realty, estate,861 or immovable property; and
2. (tangible) personal property, also known as personalty, chattels, or movable
property.862
In the Anglo-American common-law systems, the notions real property and chattel or personal property are used. Immovable and movable are the terms used
in Roman and modern civil-law countries, and are preferred in Indian legal language.863 The relationship between property rights can be seen as in Flow chart 1:
Flow chart 1. The bundle of property.
Property
Corporeal/material/
tangible property
Immovables/
real property
Land
Incorporeal/immaterial/
intangible property
Movables/
chattels
Easements,
profit prendre,
usufruct, etc.
Patents, intellectual
property (IP)
Associated
rights
Interests in
land
Simplified, the first category denotes (a piece of) land and all interests in that land.
Essentially all other objects are classified as movables. As will be shown in more
detail below, the concept of land denotes the ground, thus the soil, but it also extends further than to the surface of the earth, i.e., upwards and downwards. The air
referred to as paper assets. Water rights is a concept somewhere in between, in the eyes of
some scholars.
861
The notion estate virtually denotes the same as real property, but the latter is regarded as
also including interests which are not physical, such as a right to acquire the property in the future.
862
The words are not fully synonymous. Thus in English law with its long feudal history since the
time of the Norman Conquest, a leasehold right to land is classified as personal property, also
called a chattel real. Within that jurisdiction it would thus be wrong to hold that land equals realty. However, such distinctions will not be made here.
863
I have not researched the reason for this, but it constitutes an oddity considering that it was
the English colonisers who introduced the statutory acts on property law to India in the late
ninetteenth century. Subha Rao, p. 52, writes that English law is paralleled in India by immovable/movable.
245
territory as well as groundwater aquifers are thus in principle subject to property rights and -obligations.
The two classes of corporeal property are differently regulated, especially concerning conveyance and other kinds of disposal where the legal (and social) requirements are much higher for immovables than for chattels. The historical reasons for the distinction relate partly to the fact that land, seen as being something
fixed and permanent, plays an elemental role for security, stability and development. A contract to transfer immovable property must be in writing, public registration is often needed, etc. On the contrary, no formal transfer or vesting of title is
necessary for the conveyance of movable property. Theoretically, the distinction
has an effect on how water is treated by law.
Originally, the word real related to a thing or object (from Latin res), as distinguished from a person, and the distinction between real property and personal
property did not depend upon the nature of the property, but rather upon the action by which rights in the property were vindicated. This distinction later evolved
into the definition of real property as excluding personal property (which consists
of chattels, movable goods). The conceptual difference was between immovable
property, which would transfer title along with the land, and movable property, to
which a person would retain title.
There are also practical motives behind the higher degree of detailed regulation:
most of the time, it can be presumed that someone who has a chattel is its rightful
and absolute owner, and thus entitled to pass on a full title to it. The buyer, in turn,
takes a relatively small risk believing that person. By comparison, a higher risk is involved in assuming that someone who occupies land is its owner, or can rightfully
pass it on. Or in other words; for a purchaser of land to be content with the word
of the vendor and with the appearance of ownership that flows from his possession
would be an act of sheer folly.864
Partly, this difference is due to the range of ownership rights and interests that
can prevail simultaneously in real property, whereas, at least in common law, there
are only two distinct legal rights that can exist at the same time in chattels: possession and ownership.865
Legally speaking, the term land includes not only the ground and the soil. Although the definition of real property differs substantially between various jurisdictions, land conventionally includes also what is so attached or affixed to the land
that it becomes an inseparable part of it. For instance, buildings, trees and other
things which are affixed to the land in a permanent and inseparable way are deemed
to be land.866
864
Cheshire & Burn, p. 5.

The unit of ownership is the chattel or other thing itself. Either it is owned/possessed by
someone (or by several persons jointly) or not owned/possessed at all. The latter should apply
to most natural water resources.
866
A chattel can also become permanently affixed to land or to a building, whereafter the object
loses its former character of chattel and will be regarded and classified as real property. It will
865
246
3.3 Water as property and property in water

3.3.1 A thing not capable of ownership
The fact that water in its natural liquid state is a moving thing, means that it is
quite impossible to mark a portion of water.867 Land is stationary and it is possible
to fence it off to signal the proprietors legal claims. Physical control over water is
hence not practical in the same way as over land and most other material matters.
However, the interest one may have in water would mostly be to a certain quantity
rather than a particular volume or unit of water, assuming that the quality is the
same or equivalent.
Water is constantly in some phase of the hydrological cycle, parts of which occur under the surface of the ground. In the ground, water moves very slowly and it
is most of the time invisible; the waters existence and movements cannot be seen,
only estimated by different scientific methods.
For these and other reasons, water has by tradition not been regulated as such
within property law. To deal legally with water, it needs to be further subdivided
not only into surface water and groundwater, but to water in natural and artificial
streams and tanks, into water in pipes and in wells, into water percolating or flowing. Another distinction needs to be made in relation to rainwater when is it possessed? and also between water in aquifers and water otherwise situated sub-soil
(for instance, as soil moisture in saturated zones or in pockets of fossil water). Water in a national river is regulated differently than that in a bilateral river. And so on
and so forth.868 Because water exists in so many phases and forms, it is inherently
complex to regulate it.
What might seem like a relative disinterest among lawyers to deal with water
property rights can possibly be traced back to a general theory held by the Romans
as well as found in common law, that running water in its natural state was incapable of
ownership. It was a part of the negative community of things to which there were
natural rights. Hence, such water could be used and enjoyed by all as a usufruct
right.869 Usufruct or usufructuary, a Latin term, refers to a right to use and enjoy the
fruits of something not ones own, thus belonging to another, as long as the property and its substance are not damaged, impaired or altered. Usufruct includes the
full right to use the property but not to dispose of or destroy it. For instance, a usuhenceforth pass with the land at an instance of conveyance. The typical fixtures except for
buildings are objects that are connected to or incorporation in buildings, like doors and windows.
There are certain rights to de-fix, or remove, chattels even after they have become so attached so
as to form part of the land. Burn, pp. 151f.; Megarry, pp. 19f.
867
By adding a colorant that does not dissolve, one could track water molecules, which can be
important when studying pollution issues and the movement of water in aquifers. Likewise, it can
be relevant to measure flow in terms of speed, etc.
868
Snow and glaciers are left out here, as are clouds which can bring precipitation, and soil moisture (green water). In the kind of water debate that is necessary in our era of climate change, we
cannot omit considering such water sources, though.
869
The Institutes of Justinian published in C.E. 533-34.
247
fruct right would be the right to use water from a stream in order to generate electrical power a right which is distinguishable from a claim of legal ownership of the
water itself.
The Romans coined the expression res nullius for the objects which do not belong to anyone and which, as a main rule, cannot be owned. For instance, fresh air
and rain cannot be owned by a private subject and many wild (living) animals and
fish are not as such capable of ownership. In addition, exclusive ownership and
possessory rights are conventionally not permitted to sea waters (the high seas) or
navigable rivers.870 The reasoning behind these restrictions is that ownership would
not improve such waters, only raise the costs of use for navigation (which is in itself seen as a universal right).871 The concept of res communes (objects owned jointly
by everybody; the commons) made better sense in regard to such waters. 872 In Islamic law, water is also seen as a communal commodity, a gift of God.873
Partly different perspectives have traditionally applied to water in non-navigable
rivers and streams, in artificial canals, in lakes, or captured in reservoirs or tanks.
Likewise, groundwater is subject to special considerations. To grasp fully the development of property law of water and the Indian regulation later, we should begin
with the historical foundation as interpreted by Blackstone. He wrote in general
about (private) property, its background and importance for the art of agriculture,
and mentioned also the water in wells, with reference to the Christian Bible:
[T]he support of these their cattle made the article of water also a very important
point. And therefore the book of Genesis will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where
the ground and herbage remained yet in common (emphasis added).874
Here, the principle of first in time, first in right applied. This is also known as
prior appropriation, a Roman theory. It also seems from this quotation that Blackstone regarded wells though not necessarily the water in them as subject to private ownership; exclusive property in Blackstones terminology.
Clearly, the water in wells was also very important, but was it capable of ownership? The answer seems to be both yes and no. A closer study of this part of
the text shows that Blackstone explained various natural rights and practices con-
870
This is a norm of international customary-law status.

Cf. Getzler, p. 330.
872
Roman law provided that these things are common to mankind: the air, running water, the
sea, and consequently the shores of the sea, Institutes of Justinian, 2.1.1, 529 C.E. Cf. Bouckaert,
p. 1; Epstein, various sources referred to by Getzler, pp. 329f. It lies beyond the scope of this
study to go deeper into the distinction between the two concepts res nullius and res communes.
873
FAO 2004, p. 48. A well can be owned, though, and the property extends to an area around
the well harim in which new wells cannot be dug, Burchi 1999, p. 2.
874
Bl Comm Book II, Ch 1, p. 5, with reference to Gen 21:30 in which Abraham claimed that he
was the one to have dug a certain well; it was thus his property.
871
248
cerning property, rather than expressing what he thought was the law. Further on
in the same introductory text on property he contended that
after all, there are some few things, which notwithstanding the general introduction and continuance of property, must still unavoidably remain in common; being
such wherein nothing but an usufructuary property is capable of being had; and
therefore they still belong to the first occupant, during the time he holds possession of
them, and no longer. Such (among others) are the elements of light, air, and water
Thus, a usufruct in water was conceivable, nothing more, and only during the while
the water was held in possession. We can interpret this as that water in a well was
not capable of ownership. In another of Blackstones extensive texts, there is a description of water being of a vague and fugitive nature, just as light and air, of
which there could also be no ownership. Water could instead be subject to qualified
ownership, which only lasts so long as the water is in actual use and occupation. If it
is out of possession,876 it becomes common again, meaning that every man has an
equal right to appropriate [it] to his own use.877 It is clear that Blackstones statement is quite in line with the Roman view of res communes and that he thus contributed by adding (fresh) water to the list. Natural law stipulated that water was a
resource held in common, and that individuals could at the most have temporary
use-rights to it.
3.3.2 Classification of water
What kind of property878 is water to be classified as, then? In the early seventeenth
century, Coke had pronounced that land in legal significance comprised hidden
treasures and many other things for profit, as it had a great extension upwards as
well as downwards. Water was, in his words, a species of land. Blackstone quoted
this and added that it may seem a kind of solecism; but such is the language of the
law879 land and water could not be separately treated. This was partly because
there was no legal procedure that would recognise such a claim:
I cannot bring an action to recover possession of a pool or other piece of water,
by the name of water only; either by calculating its capacity, as, for so many cubical
yards; or, by superficial measure, for twenty acres of water; or by general description, as for a pond, a watercourse, or a rivulet: but I must bring my action for the
land that lies at the bottom, and must call it twenty acres of land covered with water
[I]f a body of water runs out of my pond into another mans, I have no right to reclaim it. But the land, which that water covers, is permanent, fixed, and immov875
Bl Comm Book II, Ch 1, p. 14.

This could be the result of that someone lets out the property-holders water or diverts an ancient watercourse that used to benefit a mill or meadow, Bl Comm Book II, Ch 2, p. 18.
877
878
Both Coke and Blackstone were mainly concerned with tenures and estates; with title to land,
Getzler, p. 153. Their use of the word property is thus not synonymous with todays conception
of the terms as a whole bundle of rights and obligations, but more with dominium.
879
Co Litt 1 Institution. 4; Bl Comm Book II, Ch 2, p. 18.
876
249
able and therefore in this I may have a certain, substantial property, of which
the law will take notice, and not of the other (footnote omitted, emphasis
added).880
Blackstones point was that legal action to recover possession of a certain piece of
water was impossible as it was not acknowledged in the posited law water was
regarded as part and parcel of land and because water is not permanent but tends
to be migratory and thus not easily possessed. As water was seen only as a subsidiary component of land rights, the question of restitution (restoration to former
status or position) could normally not arise.
Against someones wrongful taking of land, which is real property, the rightful
owner or possessor can bring a real action to recover it, initiating a proceeding (a
lawsuit) in a court established by law. This is to invoke the enforcement or protection of the right, according to the specific judicial process provided for. The historical basis of the distinction between corporeal and incorporeal property is essentially procedural. An unlawful taking of a corporeal thing could be remedied after a
real action brought before the court by the plaintiff, and the land itself could
thereby be recovered. The term real property was thus applicable only to things
capable of restitution. The same, procedural reason underlies the traditional distinction between real and personal property (chattel). Against a wrongful taking of
personal property, the remedy was thus via a personal action. Hereby, the owner
could not obtain special restitution but had to be content with compensation or
damages, e.g., in monetary terms. Today, a suit for specific recovery of a chattel is
often possible, provided that the thing in question can be returned.881
Blackstone also said that
water is a moveable, wandering thing, and must of necessity continue common by the
law of nature; so that I can only have a temporary, transient, usufructuary property
therein (emphasis added).882
So what did he mean? That water was part of land, yet movable property? Getzler
writes that Blackstone regarded water as transient property; and simultaneously
as real property, being part of land.883 He summarises Blackstone thus: [w]ater is
subject to real rights, but its transient qualities give it some of the character of personal property, in particular because mere occupation of water was considered to
confer a title to it.884
Being transient involves an ability to change classification. Water that has been
captured and collected converts into being movable property, a chattel, and is
thereby conceivable of ownership. When water is possessed so as to be deemed
captive be it in a water butt, container, lake, pond, or some other receptacle
880

On the link between real and recovery of the property, cf. Halsburys Law of India, para
240.003.
882
883
Getzler, p. 172.
884
Getzler, p. 177. The theory of property in land normally requires conveyances in writing.
881
250
ownership to it can be claimed.885 It is nevertheless unclear when, at what precise

point, this transformation happens after it is drawn or pumped up from its source
so as to be visible? After it is poured into a bottle?
With a few exceptions, the question has been dealt with only in early case law
and by scholars in the U.S.A., where the question of severance886 and water transmitted in pipes and distribution networks has been discussed. From the earliest
times, flowing water has been considered unsusceptible to ownership in American
law. Because of its fugitive character, it lacked the essential attribute ascribed to exclusive dominion over its corpus.887 One author wrote in the Columbia Law Review
that when quantities are definitely separated from the stream and placed under
control in a tank or reservoir, they should become personalty, i.e. movable property.888 It was asserted in another, similar note that when diverted into an artificial
container, and subjected to property classification, water would seem to fall under
the head of personalty.889 Reference was here made to Blackstone.
In Copeland v. the Fairview Land & Water Company (1913), the U.S. Supreme Court
expressed that [w]ater, in its natural state, is a part of the land. Like any other part
thereof, it may become personal property by being severed from the realty, but not until
then (emphasis added).890 This view was more in line with the perception of water
being part and parcel with land, and once again reiterates Coke and Blackstones
doctrines. What is interesting, though, is that the Court stresses how water can be
severed from the land. In Southern Pacific Company v. Spring Valley Water Company
(1916), the question whether water in pipes is realty or personalty, i.e., real or personal property, was posed.891 According to a case note, the Court held that water in
pipes is realty.892 The author commented that water in natural streams or percolating through the soil is neither real nor personal property:
Where, however, such waters have been confined (by the exercise of legal rights) in
reservoirs or other containers they become the subject matter of ownership. The
general rule is that water thus reduced to ownership is personal property Under
the California decisions, however, water in ponds, reservoirs and pipes in short,
all water not wholly separated from the land is realty (emphasis added).893
We can safely conclude that if appropriated, collected, rectified or otherwise captured in an artificial receptacle, water becomes movable property, subject to owner885
Clark; Bouckaert.
Severance is a notion that in property law refers to the act of separating something that is attached to real property from it (typically the cutting and removal of standing timber or crops
from the land).
887
Anonymous 1913, p. 251. The notion of seisin, or seizin, is linked to the traditional understanding of possession and freehold estates in common law.
888
Ibid, p. 252.
889
Anonymous 1917, p. 297, with reference to Bl Comm Book II, Ch. 2, p. 18.
890
Copeland v. the Fairview Land & Water Company 165 Cal. 148.
891
159 Pac. 865 (Cal.).
892
H.A.J., p. 342.
893
Ibid, with references.
886
251
ship rights. The question seems harder to determine when the water is, for instance, captured in a reservoir situated within the physical borders of the owners
estate and I leave that answer open. There is a grey area in between these two instances, which will have to be determined on an ad hoc basis.
3.3.3 Riparian rights doctrine
The principle of first in time, first in right or prior appropriation, mentioned earlier, is also the foundation of the doctrine of riparian rights, which has its origins in
English common law.894 Riparian right-holders have a natural right to access flowing water, but this right is not one for the public at large: only those with land adjacent to a natural watercourse are entitled to use its water accordingly. The water is
considered res communes and is consequently not owned by the riparian right-holder.
By tradition, the riparian right cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed. Many other restrictions apply to the use of water under the riparian right, the majority of which
have been developed through case law. Most importantly, a riparian owner has the
right to have the flow of water coming to him reasonably undiminished and unpolluted, and is obliged to show his neighbour downstream the same respect.
3.3.4 Summing up
To sum up, property in terms of ownership is closely linked to possession, an obviously
complicated criterion when it comes to property in water. Land tangible, immovable property refers to the ground but it also extends under the surface of
the soil. Water in a natural state is classified as immovable, real property; it is part
and parcel of the soil not least for procedural reasons. Being a moving thing that
is seldom fixed in its natural state in the way that land is: it would be impossible to
recover possession of a certain piece of it. Water as such has traditionally not been
regulated within property law, but a number of theories and doctrines have developed since Roman times. Running water is seen as incapable of ownership, to be
used and enjoyed by all as a usufruct a res communes or common property resource.
Rain, the high seas and navigable rivers are seen as res nullius they do not belong
to anyone.
Water will become subject to private ownership once it is severed from the land,
and duly captured. It ceases to be classified as movable, real property in this moment, but it remains unclear exactly when the transformation takes place.
As a point of departure, landowners have far-reaching rights over their property, save for a duty of care towards neighbours stemming from the maxim sic utere.
These rights are increasingly circumscribed by the state, enacting regulations and
requiring licence applications with the aim of protecting resources and achieving
equitable sharing. Full and unlimited, exclusively and private ownership is almost
894
Blackstone, Bl Comm Book II, Ch 26, p. 403, wrote that [i]f a stream be unoccupied, I may
erect a mill thereon, and detain the water; yet not so as to injure my neighbours prior mill, or his
meadow; for he has by the first occupancy acquired a property in the current.
252
unthinkable in modern jurisdictions. However, the reasoning has been different

when it comes to groundwater.
3.4 Property in groundwater

3.4.1 The cuius est maxim
It is normally not very difficult to determine how land rights extend in space; they
apply as far as to the outer boundaries of the estate. Where land registration and
other kinds of public record are in place, Cartesian coordinates, physical mapping
and Global Positioning System (GPS) technique for land surveying will simplify the
establishment of the outer borders. In comparison, a propertys vertical boundaries
are less clear and much more difficult to determine. If land in the eyes of the law
denotes more than the actual surface of the earth, this would mean that a landowner has rights to things in, on, above and under the soil, and if the original point
of departure for property was dominium, or full ownership, this should mean that
everything present or found under the surface of the land also belongs to the landowner, to dispose of according to his or her liking.
An ancient maxim generally referred to as the universal rule is cuius est solum, eius
est usque ad coelum et ad inferos to whomsoever the soil belongs he also owns it to
the sky and down to the depths (sometimes translated as to the centre of the
earth).895 According to this maxim, no restrictions apply in the vertical direction,
and consequently all natural products above and also underneath the land
would belong in full to the landowner. The landowner could hence prosecute trespass against anyone who violated his or her airspace.
Ownership rights usque ad coelum have never been implemented to their full literal meaning. Curtailments have been made in both domestic and international law
so that aircraft and satellites are allowed to pass at certain altitudes without this
amounting to trespass. The height over land and buildings over which the owner
has control is in most legal systems limited to what is ordinary and reasonably necessary for use and enjoyment of the real property.
Ownership rights downwards, usque ad inferos, have not been restricted in the
same way as the landowners rights upwards, nor has the impact of the maxim been
interpreted with great clarity. Halsbury notes that [a] conveyance of land prima facie includes everything directly beneath the surface of the land (emphasis added).896
Landowners are considered to be entitled to reasonable enjoyment of their property also downwards,897 although this right is confined to the space immediately
subjacent to the surface of the earth, or that which is situated at a reasonable distance from the surface. Nonetheless, many jurisdictions contain legislation regard895
Scholars have different opinions as to when this maxim was coined by the Romans, or in
thirteenth-century Bologna. In whichever case, it was pronounced by both Coke and Blackstone.
Co Litt p. 4a; Bl Comm, Book II, Ch 2, p. 18. Cf. Gray & Gray 2006, pp. 14f.
896
Halsburys Laws of England, Vol. 39(2), p. 65, footnote 2.
897
Cf. Gray & Gray 2006, p. 14.
253
ing mining activities and treasures found in the ground, explicitly regulating that
metals such as gold, minerals such as petroleum, items from prehistoric times, etc.,
belong to the state and not to the property-rights holder or someone else finding
them.
In line with the cuius est maxim, stratified ownership is possible in English law
(and Indian), meaning that land is capable of horizontal division. This is often the
case in multi-storey buildings where different persons can have different property
in the floors. The rule also makes it feasible to own (and convey) property in trees
or growing crops, etc., separate from the ownership of the subjacent soil, as long as
the trees or crop has not been severed from the realty.898 There are other possibilities, e.g., separation of riparian water rights from the remaining rights in the land,
which could be thought of as an application of stratified ownership, and/or severance of an interest in the land from the real property.899
Despite how the common law has developed to circumscribe the cuius est
maxim, its impact is still far-reaching in certain more or less unregulated areas. This
leads us back to the question of ownership and other property rights in groundwater. The English courts have laid down a doctrine which is still of fundamental importance when seeking to determine the law where no advice is given in statutory
acts today, such as in India.
3.4.2 Groundwater rights in English common law
The cuius est maxim applies also to groundwater and was referred to in a number of
English common-law cases in the late nineteenth and early twentieth centuries.
These cases have in turn influenced the law in legal systems such as those of the
U.S.A. and India. The English court decisions were based largely on the limited and
now somewhat modified understanding of hydrogeology: the existence and movement of water was seen as scientifically uncertain and unpredictable because it was
not visible to the eye. As the water ran in hidden veins, no-one could know what
portion of the groundwater belonged to what piece of land. In addition, groundwater was regarded as an incident to land, just as water in general was seen as part and
parcel of land.
In the cases before them the courts considered English as well as Roman doctrines and maxims, such as sic utere, and took related English and American precedents into close account. Even so, there was little previous authority for the judges
to lean on and as they were clearly facing issues of novelty, they had to invent
original doctrines in order to lay down applicable rules. The rapid industrialisation
of England resulted in a demand for special rules pertaining to water underground,
and decisions also had to function as the outer frames of property rights and conveyances.900 In the following, the landmark cases will be presented in some detail.
898
Gray & Gray 2006, pp. 16f.; Subha Rao, p. 55.

Cf. Furth.
900
Cf. Getzler, p. 1f, 261ff.
899
254
The earliest of the cases is Acton v. Blundell, adjudged in 1843 (hereinafter: Acton). Initially, it had to be decided whether underground water was to be governed
by the same rule as that which applied to and regulated visible and traceable watercourses: was it a natural right? By that time common law had evolved in regard to
rivers and flowing streams, which were very important not least for driving mills.
The riparian-rights doctrine applied, according to which the use of flowing water
was considered a natural right. Though this doctrine was far from finally settled, it
constituted a frame of predictability and clarity. 901 Likewise, various Roman-law
texts were argued for by counsel. The Court, per Tindal CJ, nevertheless decided
against making a decision by analogy with the surface water rules. Instead, it was
stated that the case in question
falls within that principle, which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid
rock, or porous ground, or venous earth, or part soil, part water [T]he person
who owns the surface may dig therein, and apply all that is there found to his own
purposes at his free will and pleasure (emphasis added).902
The word all has since been interpreted as establishing a principle of absolute ownership of groundwater. However, it is not correct that Tindal CJ or the courts in the
later settlements employed the word ownership. Neither does Getzler, who
must be seen as an authority on the matter. We can compare this with how Blackstone distinguished between exclusive property in the sense of full and private
ownership, and qualified property a usufruct lasting during possession that he
thought appropriate for water.
It was laid down in Acton that a landowner was entitled to use and enjoy his
property in any manner that he chose, and could indiscriminately excavate or withdraw the water situated underground. This absolute, unlimited right could be made
use of to such a far-reaching extent that
if, in the exercise of such right, he intercepts or drains off the water collected
from underground springs in his neighbours well, this inconvenience to his
neighbour falls within the description of damnum absque injuria, which cannot become the ground of an action.903
The Court here implemented the insight that aquifers are inter-connected. It also
applied another maxim damnum absque (or sine) injuria a legal principle which denotes a loss, damage, or harm that is considered to have been caused without injury. In other words, no actionable wrong was done in the name of the law; no remedy is to be found. A loss which is a damnum absque injuria exists when a person has
in good faith exercised a legitimate right of his/hers, and this happens to result in a
loss to another. In such a case there is no legal remedy or compensation to be
sought, since no actionable injury is considered done. This kind of loss can, for in901
Cf. Clark; and Getzlers account for the history of water rights at common law.
(1843) 12 M. & W. 324, p. 1235 (Ex. Ch.).
903
Acton v. Blundell (Exch. 1843) 12 M. & W. 324; 152 ER 1223.
902
255
stance, occur because of natural phenomena such as thunder and lightning. A modern example is losses and damage resulting from market forces that put a seller out
of business.
The principle of the landowners absolute, or unlimited, rights in groundwater
was reaffirmed 1859 in Chasemore v. Richards (Chasemore), where it was also clearly established that the general law the principles which regulate the rights of owners
of land in respect to water flowing in known and defined channels as laid down
in previous cases concerning running water in streams
is inapplicable to the case of subterranean water not flowing in any definite channel,
nor indeed at all, in the ordinary sense, but percolating or oozing through the soil,
more or less, according to the quantity of rain that may chance to fall (emphasis
added).904
From this and other similar cases the conclusion has since been drawn that water
flowing in known and defined (predictable, if we want) underground streams and
channels would fall under the same law as applies to surface water, i.e., the riparian
rights doctrine. However, most soil and rock lack such channels. In Saxs words,
[w]ater that actually flows like a surface stream beneath the earths surface, as in
lava tubes or limestone caverns, is very rare Virtually all underground water percolates through the ground (emphasis added).905 Thus, the riparian rights doctrine is
not applicable to such groundwater. Instead, the property right that a landowner
has in groundwater is the usufructuary right to enjoy it as long as he can find it under
his land.
As percolating groundwater is invisible and its movements are unpredictable,
no-one can know exactly when it is part and parcel of the overlying land and when
it is situated within its boundaries or outside. Property in percolating groundwater
was not considered conceivable in Ballard v. Tomlinson.906 In this case, the Court was
asked to decide whether the defendant polluting the plaintiffs well by way of
drainage from a WC had committed an actionable wrong.907 In the next important
case, Bradford v. Pickles of 1895 (Bradford), this was nevertheless overruled by the
Court stating that
an adjacent landowner has no property in or right to subterranean percolating water until it arrives underneath his soil therefore no property or right of his is injured by the abstraction of the percolating water before it arrives under his land
904
Chasemore v. Richards (1859) 7 H.L.C. 349 = 11 E.R. 140, pp. 140, 147.
Sax 2002, p. 1, with specific reference to California but equally applicable in most parts of the
world. However, there are karst aquifers in dissolved limestone in all continents, and an underground lake has been discovered in Sudans Darfur region.
906
Ballard v. Tomlinson (1882) 29 ChD 115.
907
The case is of little precedential value today. However, it was referred to in the case Indian
Council for Enviro-Legal Action v. Union of India 1996 AIR 1446 = 1996 SCC (3) 212 = JT 1996 (2)
196 = 1996 SCALE (2)44 (the Bichhri case).
908
Bradford v. Pickles [1894] 3 Ch. 53 = (1895) A.C. 587 H.L.
905
256
The defendant, Pickles, a landowner, had begun to drain an aquifer located under
his land. This aquifer was the source of water supply to the City of Bradford, situated at some distance. The damnum absque injuria-maxim was again applied: the city
had not suffered an actionable loss and Pickles was within his legal right to do as he
pleased with all the water reachable from his land. He was not to blame that the adjacent land was deprived of its groundwater.
Pickless action to drain off the water was not in good faith; rather, he was accused of wanting to blackmail the City into purchasing his land along with its
groundwater resources, at an inflated price. However, the Court decided that the
defendants right to appropriate, drain, or divert percolating groundwater from his
own land was unlimited regardless of whether there was a deliberate intent to diminish the water quantity, with negative consequences for the neighbours. No use
of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious, it was
held.909
3.4.3 Limits to rights in groundwater
The case of Bradford established the controversial common-law principle that it is
not unlawful for a property owner to exercise even abuse his or her property
rights maliciously and to the detriment of others, including the public interest. Today, this rule is included in the expression law of the deepest well, or the largest
pump. The decision in Bradford was, nevertheless, at the extreme end of the absolute and unlimited rights in groundwater. For property in general, full and unlimited
property rights are unthinkable today, at least in English law: whether or not we
realise it, the property absolutism of a bygone era has been largely replaced by a
property relativism which holds that the estate owners bundle of rights contains
no entitlement ruthlessly to exploit land resources regardless of the communal
good.910 Major changes have come about under statutory law and many sticks in
the bundle of property rights relating to water have been reallocated. The understanding and application of the usque ad inferos principle has been limited through
several court decisions911 and statutory provisions.912
909
Ibid, p. 598.
Gray & Gray 2006, p. 1342.
911
For instance, Metropolitan Railway Co v. Fowler [1892] 1 Q.B. 165; Grigsby v. Melville [1974] 1
W.L.R. 83F-G, 85G.
912
English statutory law now includes the Town and Country Planning Act 1990; the Water Resources Act 1991; the Environment Act 1995, and the Water Act 2003 which are designed to
control the use of land and water and secure preservation. The right to abstract water from a well
or other water body is circumscribed by the requirement that a licence is obtained first; Water
Resources Act Sec. 24(1) and 24(A), as supplemented by the Water Act 2003, Sec. 1(1). As an exception, no licence is required if the water is drawn for the landowners household, or for agricultural purposes other than spray irrigation, and only in an amount that is reasonable, Sec.
27(4)(b). Under normal conditions, small abstractions, less than 20 m 3 (cum) per 24 hours, are
exempted from needing a licence according to the Water Act (Sec 45). This applies equally
whether the abstraction is made from inland water sources or underground strata. From 2012,
910
257
As regards modern water law in general, Caponera holds that it purports to limit
individual rights in favour of centralised administrative control. The authorities responsible are therefore increasingly legally empowered to exercise control over the
quantity and quality of groundwater. State interference has become necessary given
the limited knowledge as to the nature and behaviour of groundwater, and the special attention required in its survey, extraction and utilisation. Several legal measures
have been devised in various national jurisdictions, including the introduction of
strict permit systems and the declaration of special zones for the use of groundwater.913 If the state asserts ownership over water resources as in relation to private
landowners, this is for instance done by laying down that all of the state waters belong to the public for use by the people for beneficial purposes,914 and by reference to the Public Trust doctrine.
Getzler writes that the judgement in Acton rested on a simple absolutist concept of landownership usque ad coelum et inferos, a philosophical rather than a historicist approach, calculated to promote an individualistic or libertarian plenitude of
power for the land owner.915 He further summarises the reasoning behind the decision in Chasemore so that [i]t would curb exploitation of land too much if proprietors were required to avoid activities harming natural water flows the extent of
which they could not discover. It followed that no limit could be placed on the use
proprietors could make of indefinite water flows; use of underground waters was
therefore to be unregulated (emphasis added).916 Getzler also shows that in the English history of riparian rights, intensive but replenishable users of water for hydropower (together with other forms of industrialisation) were behind the litigations
whereas in the American development, it was generally more common that conflicts
arose because water was appropriated for consumptive use.917 In addition, the importance of doctrine, conceptualism, and the Roman and mediaeval early-modern
formulary law must be recognised: [s]ophisticated extra-legal policy arguments
may have exerted some pull, but policy was expressed or filtered through the ancient vocabulary of the law.918
In the nineteenth-century court decisions on groundwater in undefined channels, a distinction is consistently made between the right in percolating waters, and
the riparian right which is described as a natural right. The landowners right to appropriate the groundwater percolating under their lands was thus not a rule that
was found to exist in natural law it was successively laid out and instituted as
the Environment Agency is empowered to amend or withdraw a permanent licence without
compensation, if the licencee is causing serious damage to the environment. Cf., Gray & Gray
1998, p. 19; Gravells, p. 5. Being a member of the EU has
913
Caponera, pp. 248f.
914
Cf. Virginia Code 62.1-44.36; and legislation to implement the Great Lakes Compact in
North America.
915
Getzler, p. 267.
916
Ibid, 7 H.L.C. pp. 374-9 per Lord Chelmsford; Getzler, p. 308.
917
Getzler, pp. 328ff, especially pp. 341f., with in-depth analyses of, i.a., Carol Roses accounts.
918
Getzler, p. 342.
258
part of common law. It is a positive right, a doctrine the frames of which were determined by the English courts. Getzler asserts that the reasoning in Chasemore was
following the new natural-right orthodoxy: knowledge of the percolating waters indefinite flows could not be material in respect of a right which does not grow out
of the assent or acquiescence of the landowner but out of the nature of the thing
itself (emphasis added).919 This new right, based on the special characteristics of
underground water as well as the scientific ignorance of those days,920 came to exert
a major influence on the law of groundwater in the U.S. and in India. Many American courts adopted this doctrine, and called it the English Rule but it was widely
discussed and many considered it inappropriate. A brief outlook on the American
systems is relevant for discussing the Indian legal situation.
3.4.4 Outlook: the English rule in the U.S.A.
English common law on water both the concept of riparian rights as applying to
natural streams, and the rule of percolating groundwater began to be adopted in
the federal U.S.A. during the 1800s. What was termed the English rule on landowners unlimited right to percolating groundwater is often referred to as rendering
absolute ownership (I object to this terminology and interpretation of Acton, as
indicated above). Soon enough, competition over groundwater made it necessary to
modify this doctrine and several other ones were established, but it is still the law in
some of the wet States in the east.
However, States especially in the arid western part of the U.S.A. adopted the reasonable use doctrine, sometimes called the American rule.921 This means that percolating groundwater is considered part and parcel of the land above it, and that
landowners can withdraw as much as they wish regardless of the effect on neighbouring land as long as they make beneficial and reasonable use of the water on
the overlying land. When water is in limited supply, withdrawal must be weighted
by land area owned. Water must be withdrawn for beneficial use. Surplus groundwater may be appropriated for export to other land. The practical difference between the English rule and the American rule is thus a prohibition of waste.
The California Supreme Court expressly rejected the English rule under which
landowners could inflict whatever damages they wished on other claimants already in 1903.922 It established instead the doctrine of correlative rights. Each overlying landowner was, accordingly, entitled to make reasonable beneficial use of
groundwater with a priority equal to all other overlying users. This doctrine has
continued to develop in California. If the groundwater supply is inadequate to meet
919
Getzler, p. 308, referring to Chasemore v. Richards 7 H.L.C. p. 375.

Cf. that in Chasemore, per Lord Cranworth, p. 379, it was added that groundwater percolated by
a process of nature not apparent, and therefore such percolating water has not received the protection [of riparian rights] the consequence would otherwise be that every well that ever was
sunk would have given rise, or might give rise, to an action (emphasis added).
921
Cf. Kanazawa.
922
Katz v. Walkinshaw 141 Cal. 116 (1903).
920
259
the needs of all users, each user can be judicially required to proportionally reduce
use until the overdraft is ended. The policy significance of correlative rights is that
each well owner is treated as having an equal right to groundwater regardless of
when first use was initiated.923
Apart from the English rule, the American rule of reasonable use, and the correlative rule, a fourth doctrine regulates groundwater use in the western U.S.: prior
appropriation. Under this, a first in time, first in right rule applies for beneficial,
non-wasteful use of groundwater. This is mostly combined with a record and permit procedure system, administered by a State office.924
Mary Brentwood and Stephen Robar write that the role of the federal government in
groundwater management in the U.S. has been limited, even lacking. This, they
emphasise, must be understood when examining groundwater law and policies in
the country. However, they add,
this limitation is not due to any constitutional or legal barriers bur rather is selfimposed and due to historical and cultural factors. Such limitations are not uncommon
in many large (federal) countries including India, Pakistan, Brazil, and the Peoples
Republic of China (emphasis added).925
Interestingly enough, the authors also point to how the second most important factor in understanding American groundwater management is that the law has
formed in large part in relationship to the form and volume of groundwater found
in a particular region and the period in which the region was settled.926 Many settlers being immigrants from England, it is natural that they brought with them the
legal system with which they were familiar. But as the conditions in various parts of
the land were experienced, it was noticed that the English rule of property in
groundwater was improper and unreasonable where the water resources were
scarce and the climate arid. By way of judge-made law, later supplemented or replaced by statutory law, limitations were introduced with the aim of establishing a
more equitable system. For instance, the Public Trust doctrine became part of the
common law of the United States at the end of the nineteenth century, confirmed,
among other things, with the Californian Mono Lake case in 1983.927
3.4.5 Summing up
According to the universal maxim cuius est, what is found underground belongs to
the landowner. From the Acton, Chasemore and Bradford cases a doctrine often referred to as the English rule lays down that all groundwater percolating in an undefined way is the property of the landowner, albeit neither by ownership or natural
right but a usufruct right laid down in positive law. Further, a neighbour whose
groundwater is intercepted has no actionable cause until the water has arrived un923
Kanazawa, p. 183.
Brentwood & Robar, p. 39.
925
Ibid, p. 37.
926
Ibid.
927
National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983).
924
260
der his land; any inconvenience or loss due to the interconnectedness of aquifers is
considered a damnum absque injuria for which no remedy can be sought. As a main
rule, neither running surface water nor water percolating in/into underground aquifers may be conveyed separately from the land above.
The English decisions were based partly on the limited understanding of hydrogeology being invisible, underground water was seen as unpredictable in the language of law and partly on the demands of rapid industrialisation.
The principle of the deepest well and the largest pump is thus legalised, but it
has been interpreted and curbed in many modern legal systems. English and
American common law alike have diverged from the doctrine giving landowners
unlimited rights in percolating groundwater. It still remains essentially unchanged in
many jurisdictions around the world, though.
4 Property in the form of interests: easements

The legal concept of property also includes other forms than ownership. Commonly referred to as interests, or sometimes as associated rights, these rights relate to or are over someone elses immovable property. The most important of
these legal instruments is easements or servitudes as they are called in civil-law
countries and the most commonly known easement is right of way.
The underlying intention of easement rights is to cater for the beneficial and efficient enjoyment of immovable property by legally enabling the possession and exercise of rights to do something in respect to anothers land. The easement interest
takes into consideration natural dispensations and physical conditions in the landscape, according to which one piece of land might be more favourably situated
than another. When two landed properties relate to each other, their owners are
equally related. The landowner who is exercising the easement right is referred to as
the dominant owner (d). He or she stands in relationship to the neighbour (s) who
owns the servient land. A characteristic situation is when (d) must pass over the land
of (s) in order to reach a road or something else that (d) needs to access. If an
easement exists by prescription or valid agreement or is established between the
two, (d) gets a right of way which is accompanied by a burdening liability (an obligation) imposed on the land belonging to (s).
The law of easements originally grew as a necessary crutch to property law in
general. The easement is an interest in someone elses land. It is associated with,
and functions to prolong, the ordinary rights of a landowner but is exercised over,
or vis--vis the real property of a neighbour. Without at least a usage right to the
land that belongs to (s), (d) would not be able to make full use of his/her land, and
it would consequently not render the same value. The right is therefore attached to
and runs with the land itself and not with whoever is the proprietor of the land for
the time being. The two properties must be adjacent, thus in the immediate vicinity
of each other.
The effect of a valid easement can be compared with taking out a stick from the
bundle of full ownership rights in the hand of (s). The easement affects the owner261
ship rights to the burdened land so that (s) becomes subject to restraints on use,
enjoyment, etc., and (s) can thus not hinder the right of way except by new agreement.
A typical easement, apart from right of way, is when (d) goes to the neighbours
land in order to fetch drinking water from a spring there, or needs to lay down a
pipe through that land for the same purpose. These situations are of great practical
importance and of interest when discussing access to and supply of water.
Without doubt, the doctrines of the Romans and Blackstone continue to exert influence over the conception of property rights in general as well as in terms of water, although many modern legal systems will have departed from them to various
degrees by way of court decisions and/or statutory law. Compared to minerals, oil
and gas, ancient remains, the property rights of which are normally vested in the
state through detailed regulations, groundwater tends to be less well controlled.
The rule laid down as regards running water clearly visible is that it is a natural right, a gift of nature, and hence belongs to no one. As mentioned, for riparian
owners running water is traditionally seen as a natural incident to the right to the
land, linked to and by necessity dependent upon the existence of the land right. The
control of groundwater according to the English doctrine makes it positively regulated, with legal sources in both Roman law and judge-made law. As such, it is subject to change when the law-maker deems this necessary.
A usufructuary right to enjoy water generally applies. Many jurisdictions still
deny the very idea of private ownership of water as such. The element of possession is determinant and, without this criterion being fulfilled, water is res communes.928
These are prerequisites that already Blackstone laid down. It can safely be said that
water in its natural, running state is not capable of exclusive, absolute or full ownership in any legal system. In so far as groundwater is not expressly regulated, the
same applies. It is perceived as res communes through tradition, well-established doctrine and/or through the suppression of private ownership rights and the transfer
of the resource to the public domain via law.929 There is nothing remarkable in that
the transient usufructuary property rights that landowners originally enjoy in many
jurisdictions are subject to far-reaching regulations for the benefit of other landowners and water-using sectors, the general public, future generations, and the ecosystem. The English courts decisions were reached at the turn of the last century
and the reformative steps taken both in England and the U.S.A. to impose limitations in the rights of landowners are natural in the light of improved scientific insights and increased pressure on the water resources. As we will see in Chapter IX
and X, similar insights are implemented bit by bit in India.
928
929
Cf. Clark; Gray & Gray 2006.

Cf. Getzler, pp. 66ff, 330; Burn, p. 581; Megarry, p. 418; Caponera, p. 249.
262
In the literature and general debate, riparian rights, the English rule and other
water-related doctrines are also spoken of as water rights. In other words: the one
who owns land and thereby has usufructuary rights to enjoy water in an adjacent
stream or water situated underground has a water right according to this vocabulary. In the following chapter, we will look closer at this notion and how state regulation of such rights in water is discussed.
263
Chapter VII
Water Rights
1 Introduction
There is no all-embracing definition of the concept water rights. This is partly a
consequence of incomparable terms and systems applying in various jurisdictions.
It also relates to the perception that many treatments of water rights use an overly
narrow, legalistic interpretation that overemphasizes statutory rights laid down in government law books (emphasis added).930
In this chapter a discourse on informal water rights existing de facto will be
presented and contextualised against lawyers interpretation of water rights de jure.
The informal status of these de facto rights, as compared with legally-binding de jure
rights, is explained in terms of legal pluralism. The discourse can be construed in
comparison with the role of law in society. The objective here is to shed light upon
the similarities and differences between the two perspectives, pertinent for a better
comprehension of rights to water as a function of law and norms of conduct.
2 Water rights as customs and norms

2.1
Existence and role of de facto water rights
Much scholarly work on water management points to the ordering, control, and
governance of water resources that take place outside the ambit of law. Formal
930
Meinzen-Dick & Bruns in Bruns & Meinzen-Dick 2000, p. 25.
264
state law and governmental institutions (authorities, courts, the police) are thus often described as contested and sidestepped by non-state law or other kinds of
rules; and the need to look at the many bases for claiming water is emphasised by
many writers.931 There is thus a discourse on water rights, within which such rights
are asserted to apply in parallel with or instead of the state regulation of water. This
understanding of water rights relates to aspects of land ownership, farmer communities (essentially irrigation practitioners) and general conditions in the local, rural
environment. These water rights exist as a result of custom, prescription, negotiation and agreement, social practices and local norms for behaviour.
The discourse on water rights regards statutory, formal legislation on water as
an endeavour to rule the resource in a top-down manner, and argues that this is incompatible with practices at village level. It is therefore proposed that de facto control over water by actual users, at local level is more important to acknowledge
than any absolute water rights vested in the state, at least from the perspective of
water use and its equity effects.932
This discourse draws on perceptions and practices outside the legal positivists
definition of the world and is sometimes held to reflect law in action as opposed
to, but mainly as complementary to, the definition of law in books. The inability
of state governments to enact and enforce effective formal water rights is also often emphasised. Part of the discourse maintains that water rights equal empowerment and equity, and that they constitute the logic and basic foundations of water
management in systems handled by the users themselves.933 The dissociation of de
facto rights from formal rights (permits, licences, concessions, etc.) is in many instances connected to the colonial experience of foreign law imposed on water users
by the Europeans.
These informal water rights are held to exist and exert influence whether recognised by the formal system or not, not least by virtue of their function of non-state
legal orders. They are held to be more effectively exercised in water management
practice, and embedded in social, political and economic relationships.934
A variety of definitions is, however, offered. We will look at two of these here.
In the first example of how the notion may be understood, the basis of the rights is
a combination of social facts, such as labour:
In general, local water rights are based on a combination of historical rights,
claims emerging from labour (or capital) input in (re)constructing irrigation or
drinking water systems, territorial rights or individual rights linked to land ownership. Often, these complex combinations do not correspond to what is defined as water rights in official legislation (emphasis added).935
931

Cf. Maria Saleth 2005, p. 56.
933
Boelens & Hoogendam, p. VIII.
934
Meinzen-Dick & Pradhan 2002, pp. 16f.; Benda-Beckmann & Benda-Beckmann 2001; Beccar,
Boelens & Hoogendam, p. 8.
935
Vos, Boelens & Bustamente, p. 38.
932
265
The above indicates that those asserting the existence of water rights can adduce a
variety of legal sources, and seemingly, more than one basis is sometimes used in
complex combinations. Water rights asserted are closely tied to other rights, foremost in land and other property rights.
According to the second, perhaps atypical, conceptualisation, water rights may
be defined as
authorised demands to use (part of) a flow of water, including certain privileges,
restrictions, obligations and sanctions accompanying this authorisation, among
which a key element is the power to take part in collective decision-making about
system management and direction.
The main element of this definition is authorisation; one can talk of rights only
when water use is certified by an authority (individual or collective) with legitimacy and
power of enforcement, and recognised by users and non-users alike (emphasis added).936
This way of defining water rights is interesting in that it refers both to legal aspects
such as certification and authorisation and to legitimacy and recognition. The latter
notions tend to be problematic, however, because water rights rarely reflect the
needs and values of the entire community. Water rights, the literature suggests, are
applicable in the local setting and almost exclusively on behalf of farmers irrigation
practices. They relate to the man-made channels and sluices that have been built for
production of food and fibre, and it is predominantly landowning farmers who are
acknowledged as water users. Although it has been alleged how irrigation systems
also provide water for a range of other uses, and include more than irrigated farmers as
users (emphasis added),937 the water rights of this discourse nonetheless relate to irrigation purposes. This narrow social group provides the context of application and
largely explains the interest vested in upholding the rights as part of legal pluralism.
The above quotations, though complementing each other, also show how differently water rights are understood, much depending on locale and setting, scale,
historical background, parties involved and natural conditions. What counts as water rights will also be influenced by gender, ethnicity, caste and class hierarchies,
and by the level of education and information accessible.
One relevant question we need to ask relates to where we find these rights applying. The literature suggests that the phenomenon of informal water rights exists
primarily in rural areas in countries in the South (developing countries and newly
industrialised countries), in locales where traditional practices prevail.938 However,
local de facto water rights can probably be observed in most societies in parallel with
936
Beccar, Boelens & Hoogendam, p. 3.

Meinzen-Dick & Bakker, pp. 1f. The productive uses enumerated are home gardens, livestock, fishing and aquatic products, and micro-enterprises such as brick-making domestic uses
often thought of as the domain of municipal water systems: drinking, cooking, bathing, washing,
and even recreation [and] environmental uses, including recharging groundwater, flushing contaminants, and supporting wildlife.
938
Countries on all continents have been investigated: cf. Pradhan et al. (eds.); Bruns, Ringler &
Meinzen-Dick (eds.). The majority of the research seems to have been focused on the situation in
the Andes, though. Cf. Boelens & Hoogendam (eds.); Boelens & Dvila (eds.)
937
266
the formal state system of granting water rights. Thus, unauthorised groundwater
abstractions, emissions to water bodies, drilling of wells, poaching fish, and so on,
are activities which probably exist, are known about and to some extent approved
of at the confined community level. The conduct might be perceived as proper and
rightful, even legitimate, at least in so far as it takes place in or on (what is seen as)
ones own property. In other words: there are discrepancies between the conduct
stipulated by formal law, and actual conduct.
If we take the second definition quoted above as point of departure, a connected concern is who promulgates and institutes the water rights referred to
who is the rights-maker and is this a body perceived as legitimate? We need to take
a step back and consider some of the general difficulties inherent in researching
and analysing law, rules and rights, including de facto rights. I will argue that the notion of water rights has less to do with law than with norms, and that the concepts
are better not blurred and mixed.
2.2 Social norms as local law

Anthropologists have studied the phenomenon of social norms and local rules
since Bronisaw Malinowski pioneered the field by placing himself among the indigenous people of the Trobriand Islands in the early twentieth century. Legal anthropologists and sociologists alike have continued to confront the same basic questions, summarised by Sally Falk Moore as follows:
What were the local rules that made social order possible? Was that to be considered the law? How does an observer distinguish the rules that are law-like
from those that are simply social conventions? Can such a distinction be made?
And if the local people do not draw any such line, can the ethnographer do it
without distorting the cultural facts?.939
Moore adds that the anthropologists, who were all working in colonial situations,
operated by analogy to the law in the countries from which they had come,
though to varying degrees.940 Malinowski concocted his own working definition of
law and the legal forces, Moore writes. Though his intention was to discover
and analyse all the rules conceived and acted upon as binding obligations, to find out the
nature of the binding forces, and to classify the rules according to the manner in
which they are made valid (emphasis added),941 he was forced to modify the scope
of this definition when he examined the encompassing breadth of the idea of cus-
939
Moore, p. 67.
Ibid.
941
Malinowski, pp. 51ff, quoted in Moore, pp. 68f. It appears that Malinowski must have had the
notion of opinio juris in mind, i.e., the subjective element of customary international law according
to which there is a sense of obligation involved, as he analysed rules conceived and acted upon
as binding.
940
267
tom.942 Law was hereby distinguished as a sub-category of customary obligations.943

Malinowski was in decisive conflict with the theories of his time, according to
which indigenous societies had no law. The amoeba-like reality of the people under
study did not fit neatly into the square box of the template positive law but the
researcher found a distinct pattern in conduct and feelings of the natives. This was
used to define and label the situation as one of both positive law and custom:
Civil law, the positive law governing all phases of tribal life, consists then of a
body of binding obligations, regarded as a right by one party and acknowledged as a duty
by the other, kept in force by a specific mechanism of reciprocity and publicity inherent in the structure of their society (emphasis added).944
Considering the mentioning of rights and duties, Malinowski may have been influenced by his contemporary, Hohfeld. What Hohfeld and others after him described
as a relation of claim-rights corresponding to duties, Malinowski however analysed
in terms of reciprocity. This element of mutual dependency was the specific mechanism by which rights and duties were kept in force.945
The study which Malinowski conducted and the analyses and conclusions he
produced were ground-breaking, stressing as they did the functional equivalence to
enforcement in primitive societies lacking state-backed courts, police, and like authorities. Habits, conventions, traditions, a feeling of respect, and a tendency to do
what others did were factors observed by Malinowski as bases for claiming that the
law was being imposed and enforced on the Trobriand Islands.
It can be asked whether Malinowskis findings, founded as they were on a concocted and forced definition, are relevant to making generalised conclusions about
the prevalence of non-state law. Similarly, is legal pluralism a purposeful analytical
concept? Why not keep a distinction between law (legal norms, formal rules, rights,
etc.) and social norms? Instead of forcing what Malinowski found into the box
named law, he and scholars after him could easily have applied the rich theories of
sociology and norms. For instance, mile Durkheim explained norms as being expectations of how people will behave, which take the form of a rule that is socially
rather than formally enforced.946 According to Moore, though, Malinowski rejected
the connection to Durkheim.947
Social norms are cultural rules, guiding or governing all human relations to socially acceptable or appropriate behaviour. The words norm and normal come from
the same linguistic root, and are tantamount to a standard. Social norms are found in
942
Moore, p. 69.
Ibid.
944
Malinowski, p. 58, quoted in Moore, p. 69.
945
The insights into reciprocity laid ground for an important theory in the field of anthropology.
Although an interesting analysis could probably be made by comparing this theory with
Hohfelds correlative thesis, I save this for the future.
946
Durkheim, in The Division of Labour in Society.
947
Moore, p. 69.
943
268
every society and every group; they can be implicit and exist in the collective mind
rather than being written or explicitly pronounced. Characteristic is also that most
concerned members of a group but not necessarily all must know of, accept,
and let their conduct be ruled by it.
The terms local customs and traditional practices describe similar phenomena
as social norms in that they normally are linked to sanctions and the kind of restorative action that is fitting in the surrounding circumstances, rather than to
remedies. The sanctions can take the form of social pressure and stigma, making
use of kinship ties and even (the threat of) exclusion from various contexts. Economic incentives are of course prevalent, as well as material measures (penalties).
Existing religious norms (for instance, dharma and karma in Hindu communities)
would also be of relevance. In so far as social norms, local customs and traditional
practices reflect cultural values and beliefs held collectively by members of a community, thereby affecting the members behaviour, the three terms can (and will) be
used interchangeably here.
None of the three tems have legally binding character. Unlike customary law
(as discussed below), a social norm can have been practised by members of a group
for a relatively short time, and can be inconsistent with statutory law. Norms can,
all the same, be firmly established as patterns of behaviour. When manifested generally in society, as a belief system or tradition, a norm can be thought of as an institution.948 The more deeply engraved a norm is in peoples minds, and the larger
the group of adherents, the more of a binding force.
With different areas of application, a multitude of norms cover and affect various functions of peoples lives in parallel pluralism thus prevails. There may be
overlappings, and thereby internal conflicts, between parallel norms both vertically
and horizontally. A hierarchical situation may develop, where one norm takes
precedence as the rule.949
2.3 Legal pluralism

Since Malinowskis days many scholars have held that non-Western societies and
especially the former colonies have legal systems wider in scope than the positive
(or natural) law acknowledges. The concepts rights, law, morality and a number
of other /semi-/legal concepts are often filled, supplemented or even replaced with
different ones. In Chapter IV, for instance, we saw how Abraham has shown the
concept of dharma to be fundamental in Indian environmental jurisprudence. In addition, sources other than those of the sovereign the formal legislator are supposedly recognised to a further extent.
Todays scholars find systems and rights regimes characterised by pluralism
most everywhere, not only in developing countries and former colonies. One of948
Economists and political scientists tend to have other, and different, definitions of the concept
institution.
949
Cf. Hydn, p. 113.
269
ten-cited study is that of Robert C. Ellickson on the situation in Shasta County in

California, U.S.A. He concluded that neighbours settle disputes among themselves
partly because most people find the costs of learning about the law (and how to
procedurally use and enforce it) to be so high that it is easier to fall back on informal, common-sense norms. Ellickson called this order without law (emphasis
added), and explained that because information is costly, one cannot assume that
people will both know and honour the law. If the transaction costs of learning the
law are high there is, moreover, little use for governmental re-moulding of the law:
actors will ignore it anyway.950 Another well-known example is Boaventura de Sousa
Santos, who found dispute-settling mechanisms and popular justice in operation in
slum dwellings in Brazil in the 1970s. He explained the system of rules and practices in terms of the fictitious Pasargada law, which (he asserted) applied in the
favelas (slums) in parallel with state law.951
One thing which the two mentioned studies have in common is that they concentrated on specific locales, geographically limited, just like case studies tend to
do. Sally Merry coined the expression semi-autonomous field to describe pockets
within state legal systems.952 The problem, in my view, is that such pockets and social fields can be found wherever one looks, if one is willing to accept a broad definition of law and rights, and include normative order, social control, unspoken
rules and local customs applying in groups, organisations, communities, etc. To
Gnther Teubner, it proved hopeless to search for a criterion delineating social
norms from legal norms.953 I do not see a difficulty in doing that and agree with
Merry, rhetorically asking Where do we stop speaking of law and find ourselves
simply describing social life?.954
We can compare this with the critical view of Brian Z. Tamanaha, who explains
the all-encompassing, pluralistic approach to legal pluralism in terms of the many
notions of the concept of law as such.955 I regard it as problematic how those fully
embracing legal pluralism seem eager to explain most normative orders in legal
terms. Such an approach, as Tamanaha puts it,
generates confusion by doing violence to common understandings. It also raises the
suspicion that, at base, legal pluralism involves an exercise in theoretical re-labelling,
transforming the commonplace sociological observation that social life is filled
with a pluralism of normative orders into the supposedly novel observation that it is
filled with a pluralism of legal orders (emphasis added).956
There are valid counterarguments to this. Moore has discussed the concept of legal
pluralism set against enforceable rules inside and outside the formal law: formal
950
Ellickson.
Sousa Santos.
952
Merry 1973.
953
Teubner, p. 13, quoted in Tamanaha, p. 298.
954
Merry 1988, p. 870, quoted in Tamanaha, p. 298.
955
Cf. Tamanaha, p. 297.
956
Tamanaha, p. 298.
951
270
law can represent the interests of only one sector of the people. In many settings,
the rules made by an authority or a powerful group are imposed on a population
which does not necessarily share all of the same objective. 957 Marc Galanter found
this to explain much of the Indian situation shortly after Independence, as we will
see in Chapter X.
Moores view is that rules made by legislatures and enforced by the state are
only one piece of the existing system of obligatory norms.958 This is mirrored in
the perception commonly expressed among many dealing with de facto water rights:
state law, religious law, customary law and local norms all have something to say
in defining water rights.959 Nevertheless, this thinking can only be rightly understood after considering how the terminology today is somewhat blurred. As
Moore puts it,
[w]hen a multiplicity of enforceable rule systems operate concurrently this circumstance has been called legal pluralism. An example would be a state which has a
secular national legal system to address most legal issues, yet simultaneously, has
Islamic law courts to deal with all family law matters. These days the same term, legal pluralism, is often used more broadly to describe the multiplicity of formal and
informal obligatory rules that can co-exist in a variety of social fields. This use of
the term emphasizes the multiple sources of binding rules (emphasis added).960
So far, this possibly raises more question than it answers. What does enforceable
refer to here, and is there a legitimate authority linked to the enforcement? 961 It is
also unclear what informal obligatory rules means. Possibly, it is what I prefer to
term social norms such that can be perceived as obligatory and binding in a particular context, group and/or geographical locale, but are socially rather than formally enforced. If this interpretation is correct, it would mean that every society is
characterised by legal pluralism, because strong social norms exist everywhere. The
notion then loses its meaning as an analytical tool.
Further, multiple sources of binding rules: to my knowledge there is no legal system (including Sharia) that does not acknowledge a variety of sources as the basis of
its law. This can therefore not be decisive for the use of the term legal pluralism.
Moore continues her argument:
A definitional debate has arisen in connection with the idea of legal pluralism.
Some social scientists and lawyers treat all enforceable norms as law. Others continue to emphasize the distinction between an official legal system with the force of
957
Moore, p. 245, with references to what has been observed in former colonial societies.
Ibid, p. 247.
959
960
Moore, p. 247.
961
Clearly, Sharia is the body of Islamic religious law and is hence backed and enforced by an authoritative institution; but strictly seen sharia is not a codification of the system of law (neither is
the Quran or the schools of thought followed by Shia and Sunni Muslims, respectively). Even
highly religious states leave room for pluralism, India being one, but it is questionable whether
the unifying principle is that of rules being enforceable.
958
271
government behind it (laws) and unofficial locations of rule making and enforcement (informal but enforceable rules). Thus legal pluralism is a term which can be
analytically blurring (emphasis added, reference omitted).962
Again, it is unclear what enforceable means. Does it involve the state machinery
the judiciary and executive forces of society? Does enforcement rely on the existence of a legal system?
In order not to take this discussion too far, it will suffice with yet a reference to
Tamanaha. He illuminates the divide between the two categories of debater, based
in turn on their definition of law (from which their definition of legal pluralism
stems). These two categories are useful for understanding the existing discrepancies
foremost among scholars. Accordingly, law is seen either in terms of concrete patterns
of behaviour within social groups (Malinowski, Moore) or in terms of institutionalised norm
enforcement (e.g. Max Weber and Hart).963
Roughly, the concrete patterns end of the spectrum can be seen as constituting
a blanket attitude, embracing unity in diversity and advocating multiplicity in its
broad (postmodern) approach to seeing essentially everything as law. The institutionalised norm enforcement is instead the view of the lawyer, upholding the importance of definitions, exactness, and predictability for the sake of the rule of law
in the Rechtsstaat. Where most pluralists endorse both views or at least a large part
of the spectrum as existing, maybe even necessary, few dogmatic legal positivists
would acknowledge informal rules, local practices and social norms as (legal)
sources of law.
The function of state law, Tamanaha maintains, is often not to be the major
source of social order. Instead, we should realise that the bases include culture, customs, habits, reciprocity and language, many of which do not entail the institutionalised enforcement of norms.964 Consider how a social norm can be put into effect
in the context where it applies by use of sanctions and penalties, for instance by the
transgressor being frozen out of essential parts of the community. This sort of enforcement may have a much stronger effect than the formal system of law offers in
terms of remedies. As long as this is understood and acknowledged, little seems to
be gained by blurring the concepts and calling social norms law.
A local dispute over de facto water rights is subject to pertaining social norms and
practices and risks being solved along with traditions and even a might makes
right approach.965 However, if escalated to state authorities or to the courtroom,
the dispute will be measured by standards of formal law because the state system
claims exclusive validity and applies a certain procedural frame. Even a judge of the
962
Moore, p. 247.
Tamanaha, p. 300.
964
Tamanaha, p. 301.
965
Cf. Max Webers tripartite classification of authority as stemming from traditional domination (patriarchs, patrimonalism, feudalism); charismatic authority; and rational-legal authority. Tradition
and custom legitimises much of the decision-making and ruling in the agrarian society. Weber,
Vol. 1, Ch III.
963
272
soft, inclusive-positivism school cannot recognise rights which are merely perceived
as de facto rights in the local context. As indicated, the term customary practices or
local customs is not to be confused with customary law as the latter has a special
meaning in jurisprudence. For clarity, we will look at some definitions.
2.4 Customary law

The understanding of positive law starts as shown in Chapters II and IV largely
with there being applicable sources, one of which is practices accepted as law.
These in turn include customary law (legal customs). By the applicable definition,
international customary law is characterised by state practice exercised together
with opinio juris. A similar definition generally applies also at domestic level. Accordingly, a legal custom must be established within a particular community, locality or
trade, characterised by its long usage, and obligatory on those within its scope. A valid
custom must furthermore be certain, reasonable, and not contrary to valid statutory law.
Peter rebech et al. write that [f]or a custom to acquire the status of law it must carry
a popular perception of valid legal obligation (opinio necessitatis sive obligationis). The
key to determining whether a custom constitutes customary law is whether the
public acts as if the observance of the custom is legally obligated (emphasis
added).966
In his work on water law, Dante A. Caponera defines customary law as
i. a set of social rules deriving from a usage of a certain duration;
ii. the aptitude by those who follow these social rules to consider them
as binding.967
These definitions evidently resemble the description of social norms in both
cases, the people of the group in which the norm or custom applies consider themselves bound. However, the level of certainty in this respect must be higher for a custom to be recognised as legally valid. In other words: there can be no dispute
within the group about whether and to what extent the custom is binding. Naturally, a legal custom can furthermore not be applied contrary to other valid, positive
law. A situation of pluralism is hence not thinkable as regards the content of the
rule.
Another fundamental difference applies between a local custom and a legal custom: the criterion certain duration or long usage. Caponera writes that the duration or persistency is determined by the continued repetition of certain actions or
practices by a collective in the conviction that they are legally binding, adding that
[t]hese customs and practices must have been observed since time immemorial and
often are not enshrined in any written text. Even if the latter are not always en-
966
967
rebech et al. p. 17.

Caponera, p. 61.
273
tered in the written legislation, this does not mean they are not known to the
beneficiaries (emphasis added).968
Unwritten law is known as jus non scriptum, or lex non scripta. Time immemorial refers to antiquity, time antedating legal records, i.e., no record can be found to prove
the existence of this particular custom.969 It will ultimately be the role of the court
to determine whether a legal custom is in place, meaning that precedents, prior
court decisions, play an important role in framing the legal situation. The duration
criterion is today often expressed in terms of an established pattern of behaviour,
something that has always been done and which can be objectively verified as accepted within a particular social setting.
Contemporary civil law systems have codified most fields in which customary
law once existed, by a process of local jurists collecting and writing down the undisputed rights and obligations. In common law and in mixed systems, courts treat
legal customs as a source of law.
A distinction should, consequently, be made between customs as referring to
local (social) practices, and legally valid customary law. This means that a de facto
water right can be acknowledged as laying down binding law, but the question will
always have to be determined ad hoc and with consideration of the legal system and
other circumstances.
3 Water rights as agreed-upon contracts

Many water rights are issued by, and apply under the auspices of, organisations
working with water management in a particular system. The management mostly
consists of the O&M of man-made canals and reservoirs (tanks and dams). Disputes are often settled internally. The organisations consist foremost of farmers
having a stake in local issues related to irrigation, but other members can be allowed. The inverse is also found: water-rights holders in a village assemble to organise aspects of their water use jointly. The most common sort is probably the
Water Users Associations (WUAs), formalised principally through the agency of
the World Bank since the 1990s.970
In comparison with local, informal de facto rights, water rights are in this case
normally based on an agreement they arise out of a contract made between the
parties concerned, or it can be deduced that an agreement was reached at some
point to establish water rights between certain parties. Being an instrument recognised under civil law in most jurisdictions, a contract has legal authority: there are
968
Ibid.
In English common law, time immemorial has traditionally been defined as a time before legal history and beyond legal memory. In 1276, this time was fixed as September 3, 1189. India
follows this date.
970
The World Bank reform initiative is part of a programme for a transfer of power to user
groups under the name Participatory Irrigation Management in developing countries.
969
274
remedies attached to it if a dispute is brought to court.971 A contract is normally

seen as binding in so far as something has been agreed upon, because promises are
to be kept (the legal maxim pacta sunt servanda; pacts must be respected, applies).
The agreement as such, and its terms and conditions, can be written and explicit,
and/or oral, and even include implicit parts. It includes rights as well as corresponding obligations, but these apply only to the parties to the contract, i.e. those it
defines.
Entering into contractual agreements can be seen as a sort of highly functional
self-regulation, and this is often so where the water users involved have a long tradition of negotiating the allocation shares. Many water rights are therefore to be
viewed as dynamic, flexible and subject to frequent negotiations (emphasis added).972
However, the contract might have been negotiated by a very limited group of water
users, making it lack democratic legitimacy and leaving little or no scope for future
parties to influence its conditions.
The situation in India for WUAs is somewhat special, as we will see in Chapter
X. Next, and last in this chapter, rights as an instrument of state regulation of water will be treated.
4 Water rights in law

In common parlance, a water right is an entitlement to take out a quantity of water
from a water body and to retain the benefits of its use. The FAO has made the following definition:
[W]ater rights are concerned with the removal (and subsequent use) of water
from the natural environment or its use in that environment. In essence a water
right is a legal right:
- to abstract or divert and use a specified amount of water from a natural source;
- to impound or store a specified quantity of water in a natural source behind a dam
or other hydraulic structure;
- or to use water in a natural source (emphasis added).973
A water right can also relate to a man-made water body such as a canal or a tank.
The FAO later added that a water right might be necessary in order to
- divert, restrict or alter the flow of water within a water course;
- alter the bed, banks or characteristics of a water course, including the construction (and use) of structures on its banks and adjacent lands including those related
to the use and management of water within that water course;
- extract gravel and other minerals from water courses and the lands adjacent to
them;
- use sewage water for irrigation;
971
However, as pointed out by the FAO 2004, p. 63, canal irrigation contracts do not confer particularly secure rights.
972
Meinzen-Dick & Pradhan 2002, pp. 16f.
973
FAO 2004, pp. 13ff. Cf. FAO 2006 pp. 4f.; C. Singh 1991, p. 20.
275
- undertake fishing and aquaculture activities;

- for navigation; and/or
- discharge wastes or pollutants to water courses (emphasis added).974
In addition, a water right may be needed to conduct activities through which the
groundwater table is altered (pumping as well as artificial replenishment such as
large-scale rainwater harvesting), to drain or dredge areas, for diverse activities affecting wetlands and other protected water bodies, various kinds of treatment of
raw water (including desalinisation plants), for production of hydropower, to use
water for heating and cooling, etc.
A right is sometimes granted only after an Environmental Impact Assessment
has been carried out or some other stipulated procedure has shown the potentially
harmful effects of the activity, and how these are to be prevented and mitigated.
The permit normally also sets the frames to the activity in terms of, e.g., maximum
quantity to be abstracted or stored, minimum flow to be allowed, emission limit
values and standards, monitoring and assessments.
Tracing water rights as an instrument we see how it has played an important
role in the economic development of many societies, but also for reasons of general
predictability, efficiency, equity and, increasingly, ecological motives. Getzlers
words summarise the historical background in English common law:
Water resources were central to Englands precocious economic development in
the thirteenth and sixteenth centuries, and then again in the industrial, transport,
and urban revolutions of the late eighteenth and early nineteenth centuries. Each
of these periods saw much legal conflict over water rights, typically between domestic, agricultural, and manufacturing interests competing for access to flowing
water. From 1750 the common-law courts developed a large but unstable body of legal
doctrine, specifying strong property rights in flowing water attached to riparian possession, and also limited rights to surface and underground waters. The new water
doctrines were built from Roman law and Roman-derived civil-law concepts
The competing sectors Getzler points to are essentially the same today: domestic,
agriculture and manufacturing. Interests in the latter have been more strictly regulated to benefit the needs of farmers and households. To maintain riparian rights in
flowing waters, theories of natural rights were influential but as flowing waters are
no longer of same great importance in England, statutory law has superseded much
of the previous rights regime. As noted above, landowners use-rights in groundwater, with historical roots in Roman law, have been upheld but also circumscribed
by enactment of positive law. Partly different values and insights determine our
priorities today Justice Katju would refer to the development as due to scientific,
dynamic positivism.
Regulation is an important tool for managing water as part of a larger whole, a
component of the natural environment that must be dealt with in an integrated and
974
975
FAO 2006, p. 5.
Getzler, p. 1.
276
holistic manner. It is therefore often made mandatory for users to apply for a water
right, one which may be granted by the appropriate authority. Typically the right,
when approved, comes in the form of a licence or permit, and sometimes in combination with specific conditions as to, for instance, the duration of the right and
the precautions to be shown to neighbours. Law and legal regulations are key instruments in the efforts to improve the environment, to conserve our natural resources as well as to develop them in a sustainable way, to achieve coordination of
long-term objectives, to handle disputes, etc.976 Law also plays a fundamental role in
the management of our water resources, a fact stressed in many international declarations. The Mar del Plata Action Plan of 1977 was the first, immensely insightful
at a time when water law was only in its infancy even in the most progressive national legal systems. The Plan sets out that
legislation should define the rules of public ownership of water projects, as well
as the rights, obligations, and responsibilities, and should emphasize the role of
public bodies at the proper administrative level in controlling both the quantity
and quality of water. It should also spell out, either in the primary or subordinate
legislation, administrative procedures necessary for the coordinated, equitable, and
efficient control and administration of all aspects of water resources and land use
problems, as well as the conflicts that may arise from them.977
A legal framework is needed as the backbone of legitimacy for the state to regulate,
allocate and control its water resources,978 and for the water administration to deal
with human activities adequately and effectively.979
The formal granting of water rights forms an essential part of the states general
law-making and governance powers. We can compare this with Jean-Jacques Rousseaus idea of a social contract established by agreement between the people (citizens) and the state (government), the former thereby giving up some of their natural rights to maintain order. Rousseau held that [w]hat man loses by the social
contract is his natural liberty and the absolute right to anything that tempts him and
that he can take; what he gains by the social contract is civil liberty and the legal right
of property in what he possesses (emphasis added).980
The controlling and co-ordinating role so vested in the state becomes particularly important against the backdrop of increased competition over scarce freshwater. There is no overall consensus about the states authoritative role in issuing water rights, but David Getches holds in a general account that [a]lthough water laws
differ widely, notions of substantial public rights in the resource is a major theme
976
It has been indicated above that law is but one of several fundamental instruments. Supplementary means of reaching, for instance, the objectives of a statute are often enumerated in it
economic incentives and informative measures are the most common.
977
Mar del Plata Action Report, p. 33, fourth recommendation, as summarised in Salman & Bradlow, p. 4.
978
Salman & Bradlow, p. 1.
979
Caponera, p. 2.
980
Rousseau, p. 196. Mahatma Gandhi quoted from Rousseaus version of the social contract on
several occasions.
277
across allocation regimes and through history.981 Examples show that modern legal
systems tend to approve water rights for consumptive use, livestock, irrigation,
domestic, and industrial purposes. It is also common to find that water abstracted
for household uses is exempted from licence requirements. Some legal systems also
exempt other classes of water usage, foremost agricultural activities, up to certain
specified volumes daily. However, a problem with such rights and exemptions is
that they may not provide much in terms of security for those who rely on them.982
Water rights and water law in the sense relevant to this study pertain mainly to
the national level and the domestic law. Regulation of water resources is then
foremost associated with use of inland water983 as being a solvent, a medium of
transport and a habitat for aquatic life, for electrical power production, recreation,
as a fundamental resource for food production, for hygiene and other domestic
needs, and for drinking and food preparation. For economic and social reasons,
protection is offered for the withdrawal (abstraction, extraction, appropriation) of
water from aquifers, streams, lakes and other water bodies, for diversion of the
flow of watercourses, and from emissions and discharges into them. Protection is
now also increasingly given for the ecosystem services that water in the natural
landscape gives, for instance in wetlands. Many jurisdictions have or have had separate agrarian legislation that is mainly concentrated on land use, but which bears
also on water resources, and the same applies to planning measures in relation to
housing and other issues of building and spatial development. The issues of water
access in terms of public supply and provision are usually also covered separately,
as matters of health protection and (local) planning law. Integration of all these aspects is being realised, a little at a time, much depending on how mature the legal
system is and how far systemic thinking has come among decision-makers and legislators.
Substantial differences as well as similarities and universal values can be detected when comparing domestic water-rights regimes but variations in the duration, security, flexibility, divisibility and transferability of a water right have also
been observed within jurisdictions.984 Differences between the definitions depend
largely on the legal system at work and on whether abundance or scarcity is the
normal condition. The prevalent ways of using water bodies play a role, and so surface water is usually regulated differently than groundwater. It has been held that
the main defining difference is the degree of certainty of the benefits attached to
water rights or, in other words, the duration of the right and the predictability of
the volume of water received (to most right holders).985
The FAO explains how legal water rights (just as rights in land),
981
Getches, p. 2.
FAO 2004, p. 19.
983
Many nations with shorelines include their parts of the sea in the regulation of emissions, etc.
984
Productivity Commission, p. xiv.
985
Ibid, p. xx.
982
278
are capable of being asserted against the state and third parties in a court of law. In
the case of a dispute, a right holder can legitimately expect a valid right to be upheld by a court and as necessary enforced through the machinery and coercive power
of the state. Loss of, or damage to, a land right or a water right is prima facie subject
to the payment of compensation and the right to such compensation is enforceable
in the courts (emphasis added).986
We see here how the FAO recalls remedies being linked to rights, and to the authority and obligations vested in the state to ensure rights. This marks a fundamental difference between legal water rights and social norms, unless the latter are
acknowledged in court. This also calls to mind the rule of law in the sense of a
Rechtsstaat: the power of the state to take various actions against its citizens is limited in order to prevent arbitrary exercise of authority, and citizens have access to
courts should the state exceed the powers vested in it. The fact that the states authority can be trapped in a slow bureaucratic and maybe also corrupt body is, on
the other hand, a clear and realistic disadvantage. A local norm, enforced by the social pressure of expectations in the community, and various other sanctions, can be
more directly and rapidly implemented. Preferably, the intention behind the law is
well enough communicated and accepted and correlates with the norms in society.
In the previous chapters we looked into the right to water as a human right, and the
right to water as property. These two dimensions represent demands and competition between different sectors of water users. In many parts of the world there are
more water rights and entitlements than water: allowed pumping of groundwater exceeds the natural recharging of aquifers, extractions from rivers leave no sustainable
base flow in the water system, and so on.
When a water resource is fully allocated or even over-allocated,987 needs for reforms and reallocations must be addressed. A part of the solution lies in improved
planning for sharing the water available for sustainable consumption. Curbing of
granted water rights is another, and formalisation of customary rights may be yet
one more. Information, awareness-raising, economic incentives, zoning and bans
are different instruments to be combined in the efforts to preserve over-allocated
water resources. When measures are taken to curb existing water rights, these must
be well communicated and the level of participation offered to affected users must
be high. Despite such efforts, though, perceptions on the water rights introduced
may be varying and clashing.
The understanding of our water resources has been subject to change over the
centuries as a result of more and assembled scientific knowledge, with progressive
986
FAO 2004, p. 7.
An aquifer, catchment area or river basin becomes over-allocated as a result of more entitlements having been issued in a system than can be sustained. Over-use occurs where more water
is allocated to irrigators or other users within a given period than can be sustained.
987
279
regulations and increasing juridification988 as a consequence. One remarkable and

imperative development is that in many systems today, rights granted are limited to
reasonable use, seen as a share of the total amount of water available, rather than a
specific volume at a specific time. Correlative liability in respect of other rightholders is also emphasised increasingly. A highly related problem is that due to climate-induced changes, the year-to-year and spatial variability in precipitation may
become greater, and consequently the unpredictability of stream flow (and many
other conditions) might increase. Very few legal systems have begun to adapt their
water-rights regulations accordingly.
These are insights gained during the past few decades. Sharing and (re-) allocation of scarce water resources need to be understood from the various perspectives
and belief systems of those concerned, as well as the limitations imposed by the legal system. The concept of water rights is highly relevant to achieving this understanding.
The concept can, however, refer to both legal and non-legal rights. Whereas
the definition in the former case follows a legalistic, positivistic, sometimes even
black-letter path, the latter offers a wider perception of what rights and law entails. From Malinowskis efforts to capture the essence of law in a local society, via
current struggles to retain the (definition of) de facto rights over water resources, to
modern legislators attempts at regulating their use and abuse, we have met certain
difficulties to grasp in a consistent manner this notion.
Further, perceptions on rights and obligations may diverge between users in a
particular local system, and between them and those outside it. Not everyone with
basic water needs is necessarily acknowledged as a user within the system, though;
the discourse on de facto water rights predominantly refers to irrigating farmers and
mostly to landowning such. When Water Users Associations are discussed, drinking water aspects and other household needs are not always taken into account or
are at least not treated in great detail in the discourse.989 A user tends to mean
someone who has a stake in the O&M of water reservoirs, canals, sluices, etc.; thus
in allocation of surface water for food production. Much of this perspective relates
to traditional and gendered division of chores and tasks in local communities, but
power inequalities may also be present in the way that landless labourers are seen as
not having a stake or a right in the water resources. Water rights are not equitable
or sustainable per se.
Much discourse on de facto water rights characterises them as existing, state law
notwithstanding. These right-holders may rely on customary and religious norms,
agreements and contracts, decisions made by village elders, etc., apart from or
988
Juridification here means expansion and proliferation of the field being regulated by positive
law. An increasingly comprehensive body of regulations can be built up both by the legislator and
by the courts. The term is used, i.a. by Jrgen Habermas, pp. 256ff. (Verrechtlichung). The opposite is
deregulation.
On the other hand, there are several specific studies into the conditions of female farmers in the
literature on local water rights.
280
even instead of statutory law. From the literature the rights seem to prevail
mainly in societies where traditional, local rule is still in existence, or has been reintroduced by way of reformed control (turn over) of water for irrigation.
The discourse on de facto water rights seems to be referring only to rural environments. Social norms, local rights and obligations in for example vegetable farming in peri-urban areas including the desakota as McGee called them are likely to
be found in relation to water use also in these. This is possibly an under-researched
field.
In addition, many parts of the world witness that rural, but most of all periurban, areas are increasingly used as locations for wells. Pumping of groundwater is
important for the supply of drinking water to an ever-growing number of people
living in the city, where water is not readily available. Simultaneously, though, this
practice has detrimental effects on water tables and competes with food production. Insights on local perceptions and social norms are gradually gained on problems such as accelerating social distortion between farmers who have water to sell
and others who have to buy it,990 and on processes such as how negotiation and
multi-stakeholder dialogue can be improved,991 but more research is needed on the
subject.
We can assume that for todays researchers in legal anthropology, some points
of departure and methods resemble what Malinowski experienced. Presumptions
and preconceived notions affect how local rules are approached, described, analysed and talked about. Most of the time the researcher looking at the situation under study comes from outside and re-constructs it, employing ready definitions as
well as making his or her own in order to construe how the locals govern their
world, how they share and conserve their resources, and make order in general.
And she or he probably struggles to relate this to the better-known legal traditions,
be they European or something else, even when no comparative study is the end
goal.
In other words, the task of understanding and making sense of law in foreign
systems is difficult. It appears uncertain how much conceptual progress can be
made through the concept of legal pluralism, due to the very concept of law being
such a major challenge to grasp. Most legal systems are nowadays mixed and subject to pluralism because several layers of law apply simultaneously: international
declarations and regional agreements of the UN, the WTO, the NAFTA, the EU,
and so on. The postmodern and globalised era demands that we acknowledge
broad and varied perceptions of law, but a trivialisation of the concept of legal pluralism will not improve our understanding of law and order.
The issue of access to water can be benefitted from taking social norms, de facto
rights, local rules and customary practices into account, but the approach should
preferably employ a terminology that keeps the distinction between the notions.
There are reasons to make a difference between formal law and rules made within
990
991
Ruet, Gambiez & Lacour, p. 119.

Janakarajan et al. Cf. Butterworth & Warner.
281
the states realm, on the one hand, and social norms etc., on the other. I argue so to
uphold the rule of law, the system of trias politica and idea of there being a universal
human right to water. It would also seem as if prioritisations made at a higher level
through decisions possibly informed by a systemic perspective and by influences
from other jurisdictions are more likely to be enforced by the executive if binding
and communicated as such. The alternative involves to downplay the role of law,
Hohfelds theory of rights being correlative to duties, and Blackstones maxim that
for every right there is a remedy.
On the other hand, social norms exist in every society and in regard to most
things and human relations, and formal law is more likely followed when it is in line
with local norms and existing senses of what is right and who have claims and duties, respectively.
The non-legal understanding of water rights undoubtedly relates to titles, demands, control, strategies, and processes of access and allocation. These rights are
parts of locally contextualised systems of practices, even if they would not hold in
court. However, without conducting in-depth field studies, it is very difficult to determine the existence and extent of a particular right or social norm. What is practised in one village or within one community may not be coherently adhered to in
another. The possibilities to generalise about specific rights and norms are therefore limited.
282
Part 3
283
284
In Part 1 of this study, Bangalores water-related conditions were presented. This

last Part is again devoted to an analysis of the situation in India and Bangalore. It is
set against the theoretical aspects of Part 2, where rights in relation to water were
analysed as forming three dimensions of the issue. The division is, of course, made
for reasons of clarity but also to stress that law treats these rights, and thereby water, differently. In the following, the division will essentially be kept until the final
chapter where the three dimensions are connected. Each of the three following
chapters closes with a conclusion.
In Chapter VIII we investigate whether and how the dimension of a human
right to water is interpreted by the Indian judiciary, legislature and policy-makers.
The extent to which the right is also implemented depends greatly on the role and
jurisdiction of the citys Water Board. A closer look at the Boards functions is
therefore offered in the light of Bangalores recent expansion. It will be shown how
a legal reform is necessary to ensure poor peoples access to at least a daily basic
amount of drinking water.
Next, Indian property-rights law is investigated in Chapter IX, where the role of
English common law in present-day regulation of water will be shown. The focus
lies on rights in groundwater, and some erroneous interpretations of the law will
here be refuted. In Chapter X we look at how water rights matter differently to different sectors of users: water for irrigation comes under state regulation in large
parts of India, but has a fundamentally different legal and social basis than water for drinking. This emerges from the dispute over the River Kaveri, contended
even though expert committee, tribunal and courts have dealt at length with the
facts and circumstances applying. The issue of allocation could clearly benefit from
better-defined water rights.
The final chapter provides conclusions from the study, including a comparison
of the three dimensions of rights and a reflection on the role of rights and obligations in attaining access to water.
285
Malini
We used to get water every day. And the pressure was so high that it flowed up to
the tank on the roof without the pump. Now, we only get water delivered every other
day, for some hours in the morning. Then I make sure that the sump under the house
is filled and that is enough for us. And I water the plants on one side of the house
that day. The next day I take the plants on the other side. The well in the backyard
dried out long ago but we are connected to the Water Board network.
Malini is a bit over 70 and a widow, originally from Kerala. The cottage into
which she and her late husband moved is nowadays a part of a bigger, architect-drawn
house shared by the extended family of four generations. The house lies in a typical
middle-class area that used to be green and quiet before the growth of the city and
commercialisation brought intensive traffic. It is equipped with solar panels to heat the
tap water. The electric power supply is more problematic. After paying a large amount
of speed money to a middleman, a two-phase system is now installed, but the power is
cut off at irregular intervals. Without electricity, no water is delivered to the system.
Of course, we can handle it. Its worse for other people. I have a friend just two
streets from here. Their house is situated just a little bit higher than ours, on a hillock.
And they dont get any water the pressure is not enough.
Even we dont always get water during the summer. But then we just call the
man, from the Board, and he comes with a truck to deliver. And if they dont have
enough, or we cannot wait for them, there is this other man we call. Thats private water. We have lots of numbers to call, you see.
286
Chapter VIII
Right to water in Bangalore
1 The right to water: the Indian situation

1.1 Background
Indian law contains no statutory provision expressing a right to water for drinking
or any other purposes. Nevertheless, as party to the ICESCR, the Convention on
the Elimination of all Forms of Discrimination Against Women and the Convention on the Rights of the Child, India is to respect, protect and fulfil the human
right to water. More important, though, binding law on access has been shaped
from the fundamental right articulated in Art 21 of the Constitution: No person
shall be deprived of his life or personal liberty except according to procedure established by law. A right to water, and corresponding obligations, have been attributed to this provision as result of an interpretative process, details of which will be
presented in this sub-section.
The development of a right to water in India must be seen in the light of how
the Supreme Court evolved, over a period of around fifty years, from being a positivist court into one characterised by activism.992 Progress started from the blackletter tradition of colonial and post-colonial times. It stood still during the State of
Emergency (1975-1977) and then developed essentially during the current era of
judicial activism. The context and spirit of social justice prevailing since the beginning of this latter period made it possible to pronounce and perfect the right to water. Two cases, both mentioned in Chapter IV, mark important stages on the road
992
Cf. Sathe, p. 6.
287
to the Courts current position. One is A.K. Gopalan v. State of Madras (1950), in
which a strict interpretation of Art 21 was made.993 The beginning of the 1970s was
a period of political instability, and the then Prime Minister Indira Gandhi imposed
a State of (internal) Emergency in 1975, among other things to put an end to opposition. This led to India being ruled by decree from Delhi for a period of nineteen
months. After Indira Gandhi was defeated in general elections in 1977, the Supreme Court delivered its very liberal landmark decision in Maneka Gandhi v. Union
of India, 1978.994
The Maneka Gandhi case involved the question of freedom of movement the
liberty of the petitioner to travel had been restrained. The Supreme Court took the
opportunity to overrule the judgment in Gopalan, by interpreting the terms life and
personal liberty in Art 21 in a wider significance:
The fundamental rights in Part III of the Constitution represent the basic values
cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every
human being can develop his personality to the fullest extent It is obvious that
Article 21 though couched in negative language confers fundamental right to life and personal liberty (emphasis added).995
By expanding the meaning and scope of Art 21 it came to enshrine a positive right
to. This stance paved way to a role of the Supreme Court as a political body dealing
with political, social and economic issues, and to the entire environmental jurisprudence. From the concept of dignity, a number of concomitant attributes to Art 21
emanated, notably the right to livelihood and the right to potable drinking water.
1.2 Access to drinking water a fundamental right

The next important precedent in the Supreme Courts line of reasoning was Francis
Coralie Mullin v. Administrator, Union Territory of Delhi (1981), wherein the Supreme
Court provided more substance to the concept of human dignity:
We think that the right to life includes the right to live with human dignity and all
that goes along with it, namely, the bare necessaries of life such as adequate nutrition,
clothing, shelter over the head and facilities for reading, writing and expressing
oneself in diverse forms, freely moving about and mixing and commingling with
fellow human beings (emphasis added).996
The words chosen in Francis Mullin reflect the Universal Declaration of Human
Rights of 1948: everyone has the right to a standard of living adequate for the health
993

1978(2) SCR 621 = AIR 1978 SC 597.
995
Maneka Gandi AIR 1978 SC 597, pp. 620-21. The Court here also said that these freedoms are
not and cannot be absolute, for absolute and unrestricted freedom of one may be destructive of
the freedom of another. In a well ordered civilised society, freedom can only be regulated freedom.
996
(1981) 1 SCC 608, para 8, pp. 618f.
994
288
and well-being of himself and of his family (Art 25). Both contain a nonexhaustive enumeration of rights, and the wordings such as in Francis Mullin
correspond to including food, clothing, housing in the Universal Declaration.
We saw in chapter V how commentators hold that the latter was not meant to be
all-inclusive but representative or indicative of an adequate standard of living.997 We can
interpret Francis Mullin similarly: water was not mentioned but this does not mean it
was meant to be excluded. The contrary is more likely, given that water is the very
bare necessity of life.
The omission of an explicit reference to water was eventually adjusted in the
mentioned landmark case Bandhua Mukti Morcha.998 The case was one of the very
first PILs and concerned the living and working conditions of bonded labourers in
a stone quarry. The prevailing conditions of the labourers, which included having
only dirty water from a nullah (a semi-dry stream) to drink, was considered as depriving them of their right to life. There can be no doubt, said the Court, that
pure drinking water is absolutely essential to the health and well-being of the workmen
and some authority has to be responsible for providing it (emphasis added).999
The Court also held, by reiterating what was laid down in Francis Mullin, that
under the interpretation given to Art 21 it is the fundamental right of every person
in India to be assured a life with human dignity.1000 After lengthy discussions of the
need for clean water and sanitation facilities, the Court hence issued directions to
the Central Government and the State Government that workers should be provided
with pure drinking water etc. so that they may live in dignity. The Court has also
monitored the implementation of these directions in subsequent orders.1001
It was held by the Kerala High Court in the cases Attakoya Thangal v. Union of India and F.K. Hussain v. Union of India that the right to sweet water is an attribute of
the right to life.1002 The cases concern the Lakshadweep coral isles where the local
administration had initiated a scheme to augment water supply by digging additional wells and drawing water by means of pumps, to meet the increasing needs.
The petitioners fear was that this would cause salt water intrusion and upset the
fresh water equilibrium. Judge Sankaran Nair further held that
[t]he Executive Government has onerous responsibilities in the matter of providing
civic amenities. The Technocrat too has his role to play, in view of the impact the
matter has on environmental and hydrogeological concerns. There must be an effective and wholesome interdisciplinary interaction. At once, the administrative agency
cannot be permitted to function in such a manner as to make inroads, into the
fundamental right under Art 21. The right to life is much more than the right to
997
Gleick 2007, p. 2.
1984 SCC (3) 161 = 1983 SCALE (2)1151.
999
Ibid.
1000
Ibid, para 2.
1001
Cf., for instance Bandhua Mukti Morcha v. Union of India (1997) 10 SCC 549 which dealt with
child labour. The Court then reminded that right to potable water has been held to be a fundamental right.
1002
1990(1) KLT 580 and AIR 1990 Ker. 321, respectively (identical case reports).
998
289
animal existence and its attributes are many fold, as life itself. A prioritization of human needs and a new value system has been recognized in these areas (emphasis
added).1003
The judge continued by holding that water management may be one of the biggest
challenges in the future, and that water resources therefore have to be conserved.
Restrictions embracing the total situation would be necessary and safeguards be
evolved, but it was also maintained that even a basically conventional society may
go in for modern means and make use of pumps to draw water from private wells
Although several scientific investigations by NEERI and other organisations
had already been carried out, the Judge directed that the matter be referred to the
Ministry of Science and Technology and the Ministry of Environment:
The Scheme as envisaged shall not be implemented until it gets the final green signal
from the aforesaid agencies. I say so, because some of the suggestions indicated
by the administration in its counter-affidavit do not seem to be satisfactory (emphasis added).1005
No doubt, interesting and important issues are at hand in the cases and they are
noteworthy for being the first in which a Judge expresses the existence of a right to
water. Bas de Gaay Fortman writes that the findings of the Judge indicated a strong
disposition to preserve groundwater as a natural resource.1006 P. Leelakrishnan has
interpreted the case(s) as being a question of short-term benefits in relation to longterm harm.1007 I perceive the message given as rather double and not much elaborated on by the Court, though.
The Attakoya Thangal and F.K. Hussain cases are merely conditionally authoritative, given that the decision was made by a Single judge High Court. The point established that the right to sweet water is an attribute of the right to life is further
of rather low precedential value because the relevant Supreme Court precedents in
which Art 21 had previously been interpreted were not noticed by reference,
though certain formulations from them were reproduced briefly.
The landmark case is instead Subhash Kumar v. State of Bihar (1991), in which the
Supreme Court concisely observed that the
[r]ight to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life
1003
Ibid, para 7 (same in both case reports).

1005
1006
Gaay Fortman 2006a, p. 35.
1007
Leelakrishnan, p. 200.
1008
AIR 1991 SC 420 = (1991) 1 SCC 598, para 7. The word enjoy should mean to have the use
or benefit of something.
1004
290
In Vellore Citizens, the Supreme Court affirmed the principle of Subash Kumar by
saying that [t]he constitutional and statutory provisions protect a persons right to
clean water as well as to fresh air and pollution-free environment.1009 In Narmada
Bachao Andolan the above-mentioned case regarding the large Sardar Sarovar Dam
Project on the Narmada River Justice Kirpal held that
[w]ater is the basic need for the survival of human beings and is part of right of
life and human rights as enshrined in Article 21 of the Constitution of India The
Resolution of the U.N.O. in 1977 to which India is a signatory, during the United
Nations Water Conference resolved unanimously inter alia as under:
All people, whatever their stage of development and their social and economic
conditions, have the right to have access to drinking water in quantum and of a
quality equal to their basic needs (emphasis added).1010
U.N.O. is the name under which the UN was known up till around 1950, and the
Resolution from 1977 refers to the Mar del Plata Action Plan and the wording on
water supply therein. In the interpretation of fundamental rights under the Constitution, Indian courts must keep in mind principles embodied in international conventions to which India is a signatory. As far as possible the courts must give effect
to principles contained in such instruments,1011 being just what the Supreme Court
did in the Narmada Bachao Andolan case. This is so far the only court decision in
which the right to water is formulated as a human right, and the only one in which
any binding or non-binding UN documents are acknowledged.
From what is quoted above the precedential value would seem high, but the
Narmada Bachao Andolan case is seldom cited as laying down law regarding the right
to drinking water. Presumably the problem is connected with how the case concerns the legality, morality and ecological soundness of building thousands of dams
on the Narmada river, thereby causing the relocation of many thousands of villagers (unofficially, between 500,000 and 4 million people are estimated to be affected)
and an environmental impact never properly assessed. Another factor possibly contributing to the scant respect paid to the judgment is that it was decided by a majority of two justices against one dissenting. Thayer Scudder has written about the
judges decision-making that
[s]o prejudicial, biased in regard to development options, and ill-informed was
the order of the majority, that the third justice disassociated himself from it I
have read the judgment proposed [to be delivered Respectfully,] I regret my inability to agree therewith. Opposition immediately followed from all levels of Indian society including former judges in Indias judicial system, former national and
1009
Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647.

AIR 2000 SC 3751 = (2000) 10 SCC 664 = 2000(7) SCALE 34, para 248.
1011
Cf. Apparel Export Promotion Council v. A.K. Chopra 2000(1) SLJ SC 65 = AIR 1999 SC 625, in
which the Supreme Court held that the Courts are under an obligation to give due regard to the
international conventions and norms while construing domestic laws, and more so when there is
no inconsistency between them and the domestic laws.
1010
291
state ministers and civil service secretaries, and prominent religious, human rights
and social leaders, and, of course, from affected people and NGOs.1012
Justice Bharucha, delivering the lengthy minority judgment, emphasised the need for
proper assessments, surveys and studies of the environmental impact, during which
time further construction work on the dam should cease. The Court perceived that
it had to rule to the effect of balancing vital interests, but the executive failed
greatly in this regard. Several decisions in relation to the multipurpose Sardar Sarovar
project seem to have been justified with reference to the need for drinking water:
It is a matter of great concern that even after half a century of freedom, water is
not available to all citizens even for their basic drinking necessity violating the
human right resolution of [the UN] and Article 21 of the Constitution of India.
Water in the rivers of India has great potentiality to change the miserable condition of the arid, drought-prone and border areas of India.1013
Much of the same argument as in the above quotation was also brought up in the
A.P. Pollution Control Board II.1014 Thus reference was made to the Mar del Plata Conference and the Narmada Bachao Andolan. The Judges held the right to access to drinking
water to be fundamental to life. Among the orders passed in the case, the Court
ruled that the State Government jointly with the Pollution Control Board was to
prevent pollution of the drinking water in the two reservoirs in question by, among
other things, not permitting any polluting industries within a 10 km radius.
1.3 Limits to the right to water

The scope of the right to water was discussed by a Division Bench of the High
Court of Karnataka in Venkatagiriyappa v. Karnataka Electricity Board in 1998.1015 The
decision was taken in view of previous and conflicting judgments, and foremost in
relation to Puttappa Honnappa Talavar v. the Deputy Commissioner, Dharwad & ors. from
1997.1016 In Puttappa, the Judge had construed Art 21 to the effect that the right to
dig bore-wells was only to be restricted by the Legislature. This reading of Art 21
was radical in comparison to the case law laid down by the Supreme Court. The
Division Bench now wanted to make an authoritative pronouncement in regard
to, among other issues, whether a citizen has a fundamental or other right to draw
subsoil water for irrigation, business, or drinking purposes, and whether such a
right was part of the right to life or livelihood under Art 21.
The question concerned farmers who had dug bore-wells on their lands, to draw
groundwater for irrigation. When they applied to the Electricity Board for electricity service for their pump sets, the Board rejected the application with reference to
a circular and a Government Order. Accordingly, a minimum distance of 825 feet
1012
Scudder, p. 2., referring to L.C. Jain. Cf. para 252 of the judgment.
(2000) 10 SCC 664, para 245.
1014
(2001) 2 SCC 62.
1015
1999 (4) Kar LJ 482.
1016
1997 (3) Kar 136 LJ = AIR 1998 Karn 10.
1013
292
(about 250 m) was stipulated between public wells dug by the authorities involved
in the Rural Water Supply Scheme, and private bore-wells equipped with irrigation
pump sets. The Government Order had been issued as a response to the problem
of depleting water tables in the public wells, in line with a report on the States
groundwater status, and in the interest of the larger community. The petitioning
farmers asserted that their fundamental right to water under Art 21 had been violated. The Court in Venkatagiriyappa held that
[i]n a developing country like India, no citizen can claim absolute right over the
natural resources ignoring the claims of other citizens. It is true that life without
water cannot be conceived. But, it is equally true that water resources being limited, its user has to be regulated and restricted in the larger interests of the society
and for the welfare of the human beings. We are, therefore, of the opinion that
the right under Article 21 which is available to all the citizens, can be held at the
most to have water for drinking purposes, as, admittedly, without it, the life cannot be
enjoyed at all. However, the right to have water for irrigation purposes cannot be
stretched to the extent of bringing it within the ambit of Article 21 of the Constitution of India (emphasis added).1017
The Court concluded by holding that an order restricting the spacing between
groundwater extraction structures was justified. It also reminded the State of its
obligations to take effective steps for bringing out appropriate legislation on the
subject,1018 referring to the long-overdue implementation of the Groundwater
Bill.1019
Where the Puttappa judgment can be perceived as messy and reflecting an either
biased or somewhat ignorant attitude in the Judge, the whole Venkatagiriyappa
judgment is an exemplary precedent. The case should serve as a sound example
also to other High Courts on similar issues.
1.4 Prioritising human needs

In several court cases, a more or less express priority has been given to environmental values and human life over industrial activities and, indirectly, employment
opportunities. As the Court held in M.C. Mehta v. Union of India (1987), [l]ife, public health and ecology has priority over unemployment and loss of revenue problem.1020 As we saw above, this question was on the other hand balanced differently
in the Narmada case, where (economic) development rather than /pre/caution and
conservation were voted for.
The earliest of the balancing acts regarding water was seen in the Rural Litigation
and Entitlement Kendra v. State of Uttar Pradesh (the Doon Valley case, also known as
1017
Ibid, para 7 (a).

Ibid, para15 (c), 9
1019
The Ground Water Bill will be discussed in the following chapter.
1020
(1987) 4 SCC 463, p. 482, para 22.
1018
293
the Dehradun Quarrying case), first adjudged in 1985.1021 Limestone quarries had
adversely affected local water springs and the health of nearby residents, but the actual need for limestone quarrying for industrial purposes in the country was weighed
and taken into account. The Court, in ordering closure of the facilities, noted that
the hardship caused to the lessees (the right-holders) is a price that has to be paid
for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbances to ecological balance.1022 Taking up the case
soon again, it was stated that
the Court is not oblivious of the fact that the natural resources have to be tapped for
the purposes of social development but one cannot forget of the same time that
tapping of resources have to be done with requisite attention and care so that
ecology and environment may not be affected in any serious way; there may not be
any depletion of water resources and long term planning must be undertaken to keep up
the national wealth (emphasis added).1023
The balancing act performed seems to be founded on the principle of sustainable

development, although this notion was not mentioned. The case is remarkable also
as decided at a time when no Supreme Court precedent had expressly derived the
right to a healthy environment from Art 21. The premier order (of 1985) was later
understood on the basis that the Supreme Court entertained those environmental
complaints under Article 32 of the Constitution involving violation of Article 21s
right to life (emphasis added).1024 We will return to the case in relation to groundwater issues below.
A dispute between the water board of Indias capital city and an upstream State
regarding release of water through the River Yamuna was decided in Delhi Water
Supply & Sewerage Disposal Undertaking & anr. v. State of Haryana & ors. in 1996. The
major source of raw water to Delhi is released from the State of Haryana, and controlled by the Haryana Government Irrigation Department. The amount of water
to be shared is regulated in a legally-binding Memorandum of Understanding
signed by five States including the National Capital Territory of Delhi.1025 The Supreme Court directed that Delhi was to continue to get as much water for domestic
use from the State of Haryana through the River Yamuna as can be consumed and
contained in two given water reservoirs and treatment plants.1026 Justice Kuldip
Singh laid down a clear order of priority:
1021
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1985 SC 652. The Court has
issued a number of orders and opinions in this case.
1022
Ibid, pp. 656f.
1023
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh AIR 1987 SC 359, para 6.
1024
T. Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad AIR 1987 AP 171, cited in
1025
Per 30 September 2007, the extended metropolitan population of Delhi comprised almost 22
million people (14 millions according to the Indian census, 2001).
1026
1996 SCC (2) 572 JT, para 10.
294
Water is a gift of nature The primary use to which the water is put being drinking, it would be mocking the nature to force the people who live on the bank of a
river to remain thirsty, whereas others incidentally placed in an advantageous position are allowed to use the water for non-drinking purposes. A river has to flow
through some territory; and it would be travesty of justice if the upper-riparian States
were to use its water for purposes like irrigation, denying the lower riparian States
the benefit of using the water even for quenching the thirst of its residents (emphasis added).1027
The reasoning is similar to that of the Karnataka High Court in Venkatagiriyappa,

where a clear priority was given to drinking water.1028
The case Intellectuals Forum, Tirupathi v. State of AP & Ors. (2006) concerned the
balancing between rapid urban growth and ecological as well as human interests. 1029
Two tanks in existence since the time of Srikrishnadevaraya (1500 C.E.) and one of
which is a world renowned pilgrim centre were situated in what had become a
suburban area. Their more recent use for irrigation, drinking water, and percolation
to improve the groundwater table had been disturbed by the State governments
plans for a residential area, which encroached upon the tank beds (the catchment
area). With reference to Kamal Nath and the 1972 Stockholm Declaration, the Court
held that there is no doubt about the fact that there is a responsibility bestowed upon
the Government to protect and preserve the tanks (emphasis added). The Court
also emphasised the concept of sustainable development, the public trust doctrine,
the principle of Inter-Generational Equity, and Art 14, 21, 48A and 51A of the
Constitution. In addition, as the housing scheme was planned to suit high- and
middle-income families, institutions, and a Hindu temple trust (called the TTD), it
was concluded that
[i]f the proposed constructions are not carried on, it seems unlikely that anyone will
be left homeless or without their basic need for shelter. Therefore, one feels that the
right to shelter does not seem to be so pressing under the present circumstances
so as to outweigh all environmental considerations (emphasis added).1030
A balancing between a fundamental right to housing and environmental concerns

hence favoured the latter. The Court moreover ordered numerous detailed measures to be carried out to rejuvenate the tanks, such as mandatory rainwater harvesting, clearing of supply channels, no bore- or tubewells to be allowed in the areas,
and so on. It seems clear that the Judges had taken an interest in the potential of
rainwater harvesting to mitigate the falling of the groundwater table. Further, the
1027
1996 SCC (2) 572 JT. It can be added that the inhabitants of Delhi live in an almost permanent situation of acute water stress and that Haryana has continued to show contempt for the
MoU. Groundwater now dominates the irrigation among the farmers in Haryana, and the problems connected with over-extraction has become a serious threat to the wheat production.
1028
1999(4) Karn LJ 482.
1029
AIR 2006 SC 1350.
1030
Ibid.
295
irrigation sluices were to be kept an eye on and though it is not explicitly said, recharge of the unsaturated horizons seems to be the priority.1031
It was contended in the case that apart from the dispute brought before the
Court it also falls on this court to lay down the law regarding the use of public
lands or natural resources at a more jurisprudential level. What the judgment of Intellectuals Forum adds to the established case law is the value of tanks, not least from
the perspective of long-term groundwater conservation, and regardless of them being in top condition or not. As the case is not primarily concerned with the right to
water as a right to life as enshrined in Art 21, too far-reaching inferences should
however not be drawn.
Despite clear pronouncements that drinking is the paramount use for water,
there seem to be no direct opposition in the Supreme Courts rulings between
drinking water and water needed for food production. In Intellectuals Forum the
tanks importance for irrigation purposes was also a factor contributing to the decision. But the different forms of irrigation have not been discussed by the Court,
and therefore the difference between water used for cash crops and subsistence
farming, or between dry and wet crop varieties,1032 has not yet been subject to the
Courts balancing acts. Neither has the question of water markets groundwater
being drawn by landowners to quench other, paying consumers thirst been tried.
We can compare this with the case of Jagannath v. Union of India (the Shrimp Culture Case).1033 This dealt with the effects from the conversion of paddy (rice) fields
into shrimp farms. The Corporate sector had purchased areas which, in some instances, included public wells, and the villagers could no longer reach these to fetch
drinking water. Salinisation of freshwater wells in the vicinity of prawn ponds was
another problem, and unacceptably high levels of cadmium, magnesium, sulphate,
chloride, and total dissolved solids (TDS) were recorded, making the water unpotable.1034 Directions to prohibit aquaculture along the fragile coastline were issued: a
shrimp industry is to be permitted only after passing a strict environment test. The
Court further ordered that any aquaculture activity which has the effect of causing
salinity of the drinking water or wells shall not be allowed.1035 However, it was the
non-traditional shrimp farms that were the target, considering that the produce of
these was for dollar export only. Possibly, the same reasoning could be applied in
competition over freshwater between the growing of basmati rice (a water-intensive, irrigated cash crop grown mainly for export) and drinking water needs, both in
the local area and downstream as was ruled in Delhi Water Supply v. Haryana.
1031
Order with regard to Peruru tank, para (iv).

Irrigated dry crops include pulses, sesame, groundnut, sugarcane, maize, wheat and oilseeds.
Paddy (rice) and sugar cane are wet crops.
1033
(1997) 2 SCC 87 = AIR 1997 SC 811, para 52.
1034
Ibid, para 32.
1035
Ibid, para 52(9). As noted by Divan & Rosencranz, p. 495, the judgment met with stiff resistance from the Centre Government as well as the States. Shortly after Justice Kuldip Singh had
retired in 1997, the matter was referred to a three-judge bench which immediately stayed demolition of the aqua-farms. Cf. 1997 (5) SCALE 406; 1997 (6) SCALE (SP).
1032
296

We have seen that the judges in many of the cases dealt with here have declared the
existence of rights and entitlements under Art 21 and put responsibilities, duties
and obligations on the authorities. We will now take a closer look at how this latter,
correlative element of the concept of rights has been formulated and what this
seems to mean for the decision-making, etc., role of the States. In relation to the
general environment, there is a constitutional imperative on the State governments
and the municipalities not only to ensure and safeguard a proper environment but
also to take adequate measures to promote, protect and improve both the manmade and the natural environment, according to the decision in Virender Gaur.1036
As to drinking water it was pointed out in Narmada Bachao Andolan that the human right to water as enshrined in Art 21 can be served only by providing [a] source of
water where there is none (emphasis added).1037 The High Court of Andhra
Pradesh has subsequently held, in regard to naturally fluoride-contaminated water,
that under the Constitution, the role of the State to provide every citizen with adequate clean drinking water and to protect water from getting polluted is not only a fundamental directive principle in the governance of the state but is also a penumbral
right under Article 21 of the Constitution of India (emphasis added).1038
As the authorities have a duty to supply healthy drinking water to citizens, they are
also entitled to regulate polluting activities within the area, as pointed out in Ramji
Patel v. Nagrik Upbhokta Marg Darshak Manch.1039
The obligation on the government authorities in regard to tanks has its limits,
though. As ruled in Mrs. Susetha v. State of Tamil Nadu and Ors., a man-made tank in a
dilapidated condition and situated in an area with other tanks to recharge the
groundwater levels, could be converted into, for instance, a commercial centre.1040
The authorities in charge were, nevertheless, directed to see that other tanks in or
around the village in question were properly maintained, and that necessary steps
were taken to mitigate water shortage and preserve the ecology.
It should also be mentioned that in an interim injunction to the Shrimp Culture
Case, the Supreme Court had directed the State Governments of Tamil Nadu and
Andhra Pradesh to provide drinking water to deprived villagers by way of tankers
wherever it was necessary.1041 Such a remedial direction was not repeated in the final order, neither was any right to water mentioned by invoking Art 21.
1036
1995 (2) SCC 577, pp. 580f.

Narmada Bachao Andolan (2000) 10 SCC 664 = 2000(7) SCALE 34, para 248.
1038
P.R. Subhash Chandran v. Government of A.P. 2001 (5) ALD 771 (DB). Cf. A.P. Pollution Control
Board II (2001) 2 SCC 62.
1039
2000 (3) SCC 29. In this case, it meant that dairies with cattle that produced dung and other
waste could be prohibited near a water filtration and main pipeline, and the owners could be displaced.
1040
AIR 2006 SC 2893 = 2006 (7) SCALE 640 = (2006) 6 SCC 543.
1041
Jagannath v. Union of India 1995(5) SCALE 126; cf. Jagannath v. Union of India AIR 1997 SC 811,
para 4.
1037
297
In the Delhi Water Supply case, the Court also directed the State of Haryana
through all its officers who were party to the proceedings and who had filed affidavits before the Supreme Court not to obstruct the supply of water to Delhi as directed
by the Court at any time: any violation of this direction would be viewed seriously
and the guilty persons would be dealt with appropriately. This order of ours would
bind, not only the parties to this proceeding, but also the Upper Yamuna River
Board (emphasis added).1042
In other words, individuals as well as employees are also subject to responsibilities. Art 51A(g) of the Constitution stipulates that every citizen is duty bound to
protect and improve the environment, including water. Similarly, jural persons (legal entities such as companies) are under a burden of proof, subject to liabilities related to the polluter pays principle, etc. The Supreme Court has decided numerous
such cases with the effect of closing down factories after due balancing of the interests involved.
1.6 Constitutional amendments as proposed

Although Indian law is now equipped with a right to drinking water, the system is
evidently far from perfect. Many gaps are still left for interpretation. So far, the judiciary has performed a fundamental part of its task in this regard but there is
also a job for the legislature to do: review existing acts and rules, including the
Constitution, as well as enact new law.
In 2000, a National Commission to Review the Working of the Constitution
was set up. It examined how the Constitution could best respond to the changing
needs of modern India in terms of efficient, smooth and effective systems of governance and socioeconomic development within the framework of Parliamentary
democracy. Among the recommendations for amendments to the Constitution
submitted in 2002 was a new clause for incorporation into Art 21. The Commission
concluded that as a result of judicial decisions, certain fundamental rights not explicitly mentioned in the Constitution but serving to guarantee fundamental rights
have been inferred or deduced from the specified and guaranteed fundamental
rights. Accordingly, it was proposed that every person who has been illegally deprived of his right to life or liberty should have an enforceable right to compensation as a
right to remedy for violation of Article 21.1043
A consolidated right to a clean and healthy environment was also on the agenda.
The Commission finally recommended that the following new article be added
to the Constitution:
Art. 30-D. Right to safe drinking water, prevention of pollution, conservation of
ecology and sustainable development. 1042
1996 SCC (2) 572 JT, para 11.

Ministry of Law & Justice, National Commission to Review the Working of the Constitution
Consultation Paper Enlargement of Fundamental Rights, para 27; Final Report, Vol. I, Ch 3, para
3.10.
1043
298
Every person shall have the right (a) to safe drinking water;
(b) to an environment that is not harmful to ones health or well-being; and
(c) to have the environment protected, for the benefit of present and future generations so as to
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources
while promoting justifiable economic and social development.1044
Though the provision is aimed predominantly at environment protection, its Introduction spells out the (human) right to drinking water. This is an important recognition of the need to codify case law as it currently stands. The provision quoted
was motivated by two loose and general references, which give no in-depth understanding of how the Commission seeks to justify the proposed amendment. First, it
is observed that Gandhiji had once said that freedom for him would mean the
availability of safe drinking water to every person in every village of India, and
secondly, the Report refers to the third generation rights declared by the UN
General Assembly as an inalienable human right.1045
Both from the Consultation Paper on Enlargement of Fundamental Rights and
the Minutes of meetings of the Commissions,1046 it is clear that the cited Art 30-D
was revised a number of times. As sub-section (a) on safe drinking water is not
mentioned in these documents, it must have been included only at the very last
stage, but there is no indication of why this was done or who took the initiative. It
is therefore also difficult to assess the strength of support this part of the draft has.
The right to water expressly refers to drinking. With such a definition, there
will be a need for Supreme Court decisions to expand the meaning of the provision
to make it cater also for, i.a., other basic household needs. We must assume that
such an interpretation was intended; but a court will nevertheless have to construe
the right to safe drinking water as applying also to certain other purposes. It is also
interesting to note the criterion safe in relation to this right to water. A court will
have to define what safe means in terms of (minimum) level of quality, probably
in relation to the WHO guidelines. There is further a need for an authoritative decision on the quantity of drinking water to which each person is entitled. Again, this
may relate to the standards of the WHO and other UN organs.
However, these are only speculations the Report of the National Commission
to Review the Working of the Constitution was immediately tabled with the Centre
Government and Parliament, and then circulated among the States for their opinions. It is unknown what has happened to the draft since.1047 Reportedly, after submitting the Report, Chairperson Justice Venkatachaliah maintained his position that
1044
Ibid, Final Report, Vol. I, Ch 3, para 3.22.3.

Ibid, para 3.22.1-2. Gandhiji refers to Mahatma (M.K.) Gandhi.
1046
Ibid.
1047
As of April 2008.
1045
299
the Commission was intended only as an academic exercise, to suggest amendments to

the Constitution and certain legal and executive measures meant to strengthen constitutional provisions. Making no claims to legitimacy at all, the Commission has left it
to Parliament and the States to decide which of its 249 recommendations are implementable (emphasis added).1048
Regardless of whether an amendment such as the above is introduced in the
Constitution, some pertinent questions will remain and await further directions
from the courts and/or the legislature at both federal and State levels. Foremost,
this concerns the question of quantity how much water should be made available
as a matter of right and how far the cost should be subsidised.
1.7 The right to drinking water in policy

In the absence of statutory regulation in the field of drinking water, non-binding
policies and plans for the water supply and sanitation sector have been drafted and
adopted by Indian authorities at both national and State levels. The privatisation of
water services is a strong, and often express, theme in these. Actors such as the
World Bank, the Asian Development Bank (ADB) and the Japan Bank of International Cooperation (JBIC) are present as financers of and consultants on the policies in some cases. Several have two more things in common: they are informed by
a cost-recovery approach, and do not acknowledge water as a right.
The Indian National Water Policy was adopted in 2002.1049 It recognises that
complex issues of equity and social justice in regard to water distribution are required to be addressed, and states that in the planning and operation of systems, a
certain order of priority should be followed for water allocation. Hence, drinking water should take precedence over irrigation, then come hydro-power, ecology, agroindustries and non-agricultural industries, and lastly navigation and other uses. The priorities could be modified if warranted by area-/region-specific considerations. In the
planning for water resource development projects, provision for drinking water
should be a primary consideration (as shall, similarly, the preservation of the quality of environment and the ecological balance). According to the Policy, adequate
safe drinking water facilities should be provided to the entire population both in
urban and in rural areas. Irrigation and multipurpose projects should invariably include a drinking-water component, wherever there is no alternative source of drinking water. The drinking-water needs of human beings and animals should be the
first charge on any available water. Private sector participation should be encouraged wherever feasible.
The Policy is both toothless and superficial. It does not recognise the (binding)
right to water, it ignores factual gender differences relating to water, it is not supported by any legislation, it lacks an action plan or the like for its implementation,
and it does not point out any authority or other body as even generally responsible.
1048
1049
Venkatesan.
Ministry of Water Resources, Government of India.
300
The same critique can be directed to the States own water policies, where such exist. Karnatakas was adopted in 2002 and is, in some parts, similar to the content of
National Policy, stating for instance that drinking water is the priority.1050 Among
key issues, the latter consequently notes that [t]he demand for drinking water in
the urban and rural areas will increase in the coming years. This demand cannot be
met entirely from groundwater sources Therefore, in the next two decades water
supply systems for larger habitations will have to be based on surface water sources
like perennial rivers and reservoirs and reduction in the irrigation water use may be inevitable (para 5.8) (emphasis added). A future vision is that [i]rrigation and multi purpose projects will invariably include drinking water component (para 6.2).
Efforts have been made to provide safe drinking water in rural areas by allocating funds in State budgets ever since the very first Five Year Plan of 1951-1956.
The Central Government assists the States through programmes such as the Accelerated Rural Water Supply Programme, for towns with up to 200,000 inhabitants,
and the Rajiv Gandhi National Drinking Water Mission for rural areas. Water supply is not talked of as a right in these documents, and the responsibilities of the
States in providing the water are vaguely formulated.
Karnataka seems to have adopted a specific Urban Drinking Water and Sanitation Policy in 2003.1051 It starts by saying that [g]ood quality reliable drinking water
supply and sanitation are essential basic needs of every citizen (emphasis added) and
continues by stating the efforts
to provide all residents of urban areas of the State, piped water supply and sanitation services at or near their dwellings
Ensure universal coverage of water and sanitation services that people want and
are willing to pay for and
To do so in a manner that preserves the sustainability of the precious water resources of the State, project and enhances the commercial and economical sustainability of the operations at the same time.
Ensure a minimum level of service to all citizens (emphasis added).1052
These objectives give a fairly comprehensive impression each and every urban
citizen is to be provided with water and the service is to be such that people are
willing to pay for it, ecological and economic sustainability is to be preserved but
water is nowhere mentioned as a right and social aspects of sustainability are missing. Those living in poverty, unable to pay the costs of water services, are omitted
from this Policy. The State Government also sets out to encourage the use of public private partnerships as well as private-sector participation to achieve the sector
goals. Despite the autonomy of urban local bodies concerning water supply, the
State will monitor strictly policies relating to minimal tariff, given the paramount
1050
Government of Karnataka 2002.

Government Order No UDD 236 UMS 2001, dated 03-05-2003. Available via IELRC web
page Urban Drinking Water and Sanitation Policy, 2002.
1052
Karnataka Urban Drinking Water and Sanitation Policy.
1051
301
need for financial and commercial viability of the operations (sic). Apart from a
full cost recovery, the longer-term objective includes that adequate tariffs should
be set at levels ensuring that revenues cover operations and maintenance costs,
debt service plus a reasonable return on capital (emphasis added).1053 The latter is, as we
will see, not in line with the Bangalore Water Boards current no loss, no profit
organisation but it may become so. In the medium term, however,
subsidies will continue to be needed and will be focused in areas such as pockets
and communities of extreme poverty Tariff will be structured in a manner such
as to disincentives excessive consumption and wastage of water, whilst ensuring at
least a minimum life line supply to the poor (sic).1054
The Government undertook to do preparatory work for full, but gradually introduced, private sector participation, by fostering a culture of commercialization
and most importantly identifying and expediting the necessary legislative institutional and regularly changes that are necessary (sic).1055 Looking back at the Policy
and its aims, it is obvious that the efforts to achieve 100 percent metering and
volumetric pricing were not wholly met within the realistic time frame of about
five years, thus by 2008. In several parts of the State, though, this is under way despite the required culture or legislative amendments being in place. What is also
lacking is a commitment to a minimum level of service to all citizens.
As little information is available on the above Policy, it is difficult to determine
whether it remains on the agenda. Reform programmes are, nevertheless, undertaken by the Karnataka Urban Development Department with financial assistance
from the World Bank and via a company called the Karnataka Urban Development
Infrastructure and Finance Corporation (KUDIFC). Infrastructural projects in certain chosen municipalities aim, not least, at reforming the water sector against
the backdrop of the State being one of the most rapidly urbanising in India. The
objectives of the KUDIFC include providing financial and technical assistance to
municipalities and development agencies, and mobilisation of funds from different
sources such as the national Housing and Urban Development Corporation
(HUDCO), another company.
As indicated, Indian planning is performed along the lines drawn by the Planning Commission in its Five Year Plans. C. Ramachandraiah writes that [f]ollowing
the structural adjustment policies in India since 1991, the Eighth Plan (1992-1997)
made a significant departure from the past in giving a thrust towards privatization
of water sector. Thus, water came to be treated as an economic good like any
other commodity. This has been a paradigm shift towards commercialisation of infrastructure services, including water. The Tenth Plan (2002-2007), however, advocated special provisions to the poor who have less capacity to pay.1056
1053
Ibid.
Ibid.
1055
Ibid.
1056
Ramachandraiah, p. 16.
1054
302
In the Tenth Five Year Plan it was also proclaimed that safe drinking water
should be provided in accordance with the stipulated norms on a sustainable basis
to all habitations by March 2004 but [s]ince the availability of water in the country is going down with depletion of water table and the discharger of the rivers, a
review of the requirements of the water is necessitated. With above thoughts in
mind, the Government of India has changed the requirement levels of the rate of water supply to the individual and other users (sic, emphasis added). The minimum
standard for piped water supply was defined as 150 lpcd for metropolitan and large
cities in the Tenth Five Year Plan (valid for 2002-2007), but since May 1999 this
has now been the desired level of supply. A minimum of 135 lpcd was instead set
for large cities and metropolises.1057 In the Karnataka Water Policy the level is also
135 lpcd for city corporation areas.
The directive principles of the Constitution can be interpreted as laying down a
duty to legislate the human right to water for all. In addition, Ramachandraiah
notes that the State is duty bound to protect and enable the citizens to enjoy their
rights. Any policy of the State that jeopardizes the ability of the citizens to realise
their fundamental rights amounts to the violation of such rights.1058
We can see that the Indian government at various levels has, in both policies
and plans, endorsed a view of drinking water as an issue to be prioritised; not necessarily through its own agency, though, but through the private sector. This is not
as such incompatible with, e.g., General Comment No. 15. However, where third
parties provide the water which is a human right, the utmost responsibility for fulfilling the corresponding obligation remains with the state, which should also ensure that the water is affordable to all, based on the principle of equity.

Indian law provides for a fundamental (human) right to access to drinking water.
The articulation of the right has been refined from the negative wording in Art 21
of the Constitution the Indian equivalent of a Bill of Rights. Despite there not
being any statutory provision specifying what the right entails, its scope and extent
are well established:
Art 21 of the Indian Constitution entails a positive right to life, a life in dignity
and well-being (Maneka Gandhi, Francis Coralie, Bandua Mukti Morcha);
This right includes enjoyment of and access to water (Subhash Kumar, Vellore citizens, Narmada Bachao Andolan, A.P. Pollution Control Board);
The right applies to drinking water (Venkatagiriyappa, cf. Bandua Mukti Morcha);
The water is to be pure, healthy, pollution-free, clean and adequate (Bandua
Mukti Morcha, Subhash Kumar, Vellore, P.R. Subhash Chandran);
1057
Planning Commission, Tenth Five Year Plan, para 6.2.9, on web page Civic amenities in urban areas; cf. web page Chapter XI: Water supply.
1058
Ramachandraiah, p. 16.
303
The right to drinking water takes priority over water for non-drinking purposes
(Delhi Water Supply);
No right is to be seen as absolute at the cost of others rights (Venkatagiriyappa,
cf. Delhi Water Supply).
It has been articulated, albeit not in detail, how the corresponding obligations and
responsibilities are to be shouldered by the state and its authorities, regulated
amongst the directive principles of the Constitution:
The human right to water can be served only by providing a water source where
there is none (Narmada Bachao Andolan);
The authorities have a duty to supply healthy drinking water (Ramji Patel);
The role of the state to provide every citizen with adequate clean drinking water is
not only a constitutional principle but also a fundamental right (P.R. Subhash
Chandran).
The court decisions regulating the obligation to provide are yet too few to have
clearly established the applicable law. Most important, the questions of a minimum
quantity as a basic need and of tariffs have so far not been reviewed. Interviewed in
2003, Videh Upadhyay concluded that the Indian situation lacked specificity:
The first and the foremost thing which we need to do is to clearly specify what
right to clean drinking water means, which the Supreme Court of India (SC) upholds as a fundamental right. In last 5-6 years, many high courts have passed
judgements on clean water, but there is no clarity as to what that right means in quantitative and qualitative means. Courts also leave it open-ended, free for interpretation.
There needs to be categorical pronouncement by the SC as to what right to clean
water means. The second important thing after this would be to see how this direction of the SC gets reflected in various statutes. Relevant changes would require to be made in specific sections of specific rules (emphasis added).1059
While we await the necessary categorical pronouncement by the SC and this eventually gets reflected in various statutes, we are left to evaluate the applicable rules
and practices. How far the local public bodies empowered to provide the water are
also accountable is maybe the most interesting question. When the duties corresponding with the right to water are ill-defined, how is a claim for access to water
to be made justiciable? To answer this we now look more closely at the Bangalore
scene, after which a more general analysis can be made.
1059
Anonymous 2003.
304
2 The right to water implemented: Bangalore

2.1 Regulating supply, administering access
On average, 88 percent of the urban population of India is said to have access to or
be covered by organised water supply.1060 However, there is reportedly a huge
disparity in quantity of water supplied, inequitable distribution, erratic supplies, and
water quality continuously degrading.1061 In 2002, the National Sample Survey Organisation estimated that about 97 percent of rural and 99 percent of urban dwellings had drinking water within half a kilometre of their premises.1062 Howard & Bartram in their study of physical access to water judged that a distance of between
100-1000 m to a source of water equals basic access, meaning that the level of
concern for health and hygiene then remains high. It should also be taken into account that Indian statistics include such wells and taps as have once been installed
but not maintained since whether the water supply amenities actually provide any
water is therefore an open question. The reported data must thus be read with
some caution.
Chapter III described how each State is constitutionally empowered to plan, operate, and maintain tasks related to water. In Karnataka, water supply and sanitation
services are carried out through the mandated local bodies by the Panchayats for
the villages and the Urban Water Supply and Drainage Board for all towns and cities, with the exception of Bangalore where the Water Board is in charge. Responsibility for implementing the (human) right to water is thus delegated, but the frames
of the task are not laid down in much detail. The financial means to conduct these
tasks are to be transferred from the State to the Panchayats as regulated by the 73rd
Amendment to the Constitution, and the same applies in the urban environment
according to the 74th Amendment, both decided in 1992. It is clear, however, that
the bodies and authorities in question are mostly left to their own devices, funding
the O&M with whatever means can be raised and borrowed.
The natural and man-made conditions of Bangalores drinking water sources
were also outlined in Chapter III. According to the Central Public Health and Environmental Engineering Organisation, three-quarters of Bangaloreans had house
service connections in 2005 whereas the rest had access to water from standposts
full coverage was therefore reported.1063 In the Bangalore Master Plan 2015,
adopted in 2007, coverage is stated as 100 percent for the (erstwhile) Corporation
area but only between 10-60 percent in the (erstwhile) municipalities. The future
service levels are set at 100 percent for the entire Bangalore Metropolitan Area,
and with an average lpcd of 100, instead of todays 73, supplied for 8 hours each
1060
Cf. Raju, Praveen & Anand, p. 7; UNEP, p. 117.

UNEP, p. 117.
1062
National Sample Survey Organisation 2004.
1063
The Central Public Health and Environmental Engineering Organisation (CPHEEO), web
page Status of Urban Water Supply.
1061
305
day.1064 However, from my field studies I estimate that most households have to rely
on groundwater at least during the summer season, either as the only source of water or to supplement the water provided from the Water Board. The fact that most
of the water the Board delivers is pumped from the disputed River Kaveri is another matter to which we will return.
2.2 The Bangalore Water Board

2.2.1 Background
The Bangalore Water Board was set up in the early 1960s, when the city was the
sixth largest in India with 1.2 million inhabitants. The scarcity situation was problematic and the Cauvery Water Supply Scheme was commissioned to come to
terms with the situation. To finance the cost of this project, the World Bank was
involved. The background to constituting the Water Board is told on one of its web
pages:
Prior to the formation of the Board, the task of providing water supply to the
city was with the Bangalore City Corporation in the Cantonment area and [Karnataka Public Works Department] in the city area The World Bank team which
came for first hand appraisal of the project insisted upon the need for creating an
autonomous Board for handling the Cauvery Water Supply Scheme on commercial lines
which was accepted by the Government. Accordingly, the Bangalore Water Supply & Sewerage Board was constituted (emphasis added).1065
The activities of the Board became regulated in the Bangalore Water Supply and
Sewerage Act, 1964 (here: the Water Act). The Statement of Objects and Reasons
in the Preamble contains the following as to the enacting of the law:
It will be necessary to change the present distribution system wherever necessary
to suit the proposed water supply. As the supply of water from the new scheme will
be adequate, it will be necessary to improve the present underground drainage system to make use of the water to the maximum extent. It is, therefore, necessary to
entrust the administration of water supply and sewerage to the same Authority.
The World Bank Authorities who will be financing the Water Supply Scheme have
desired that the administration of both the Water Supply and Drainage in Bangalore be entrusted to an independent and autonomous body (emphasis added).1066
Keeping the function of water supply divided between the Government and the
Corporation of Bangalore was thus not perceived as the ultimate solution by the
World Bank, which convinced the Karnataka Government that it was necessary to
integrate the O&M for the entire city, and with the disposal of sewage through a
drainage system.
1064
BDA 2007, p. 15.

Water Board web page Formation of Board. Cf. the Statement of Objects and Reasons in the
preamble to the Water Act.
1066
Statements of Objects and Reasons to the Water Act, 1964.
1065
306
For comparison, we can look at the Preamble to the Chennai Metropolitan Water Supply and Sewerage Act, 1978. That Act refers particularly to the protection
of public health and for all matters connected therewith or incidental thereto as
one of the reasons for setting up the Chennai Water Board. In addition, among the
functions listed is
operating and maintaining the water supply and sewerage services in the Chennai
Metropolitan Area to the best advantage of the inhabitants of that area (Sec 5 (d))
(emphasis added).
The concept of public health is not at all regulated as a function of the Bangalore
Water Board, as scrutiny of the Act reveals. Further, where one inevitably realises
that the Bangalore Water Board was instituted on commercial grounds by the
World Bank (although on a no loss, no profit basis), the Chennai Water Board
shall endeavour to be financially self-supporting (Sec 5(4)) (emphasis added). Karen
Coelho has described the formation of the Chennai Water Board as oriented toward global best practice principles, with financial viability as the central goal. 1067
Interestingly enough, this process was also shaped and steered by the World Bank.
The formulations throughout the Acts regulating the Boards nevertheless show two
somewhat different approaches to supplying water.
2.2.2 Responsibilities of the Water Board
According to the division of powers provided for in the Constitution, tasks such as
distribution of water, maintenance of capital assets, and collection of water charges
and taxes would normally fall to the local self-government, thus the Corporation itself. In Bangalore, these responsibilities are vested with the Water Board. This is
semi-autonomous in terms of decision-making: a change in the tariffs, for instance,
is ultimately a matter which the Government has to agree on, but full accountability
lies with the Board.
The Water Board is charged with the general duty of providing a supply and
improving the existing supply of water in the Bangalore Metropolitan Area.1068
Steps are to be taken for ascertaining sufficiency and wholesomeness, 1069 and preparing and carrying out schemes for domestic purposes. Such schemes are to make
provision for supply in pipes to every part of the Area where there are houses and
take the pipes to such points as will enable the houses to be connected (Sec 15 (12)). These duties cannot be delegated to any other agency, body or party.1070
1067
Coelho, p. 1. Cf. Ramalingam.

The provisions on sewerage and sewage disposal are not dealt with here.
1069
There are at least four different guidelines for what constitutes wholesome water: the Indian
Council for Medical Research; the Central Public Health and Environmental Engineering Organisation; ISO 10500; and the WHOs standards for drinking water. Thus for example water
which holds over 1300 ppm of salt is not considered wholesome as it tastes very bad and can further not be used in cooking. Even the soaking of staple grains such as rice, pulses, etc., is out of
the question when the water is brackish.
1070
In 1998-1999, handing over parts of the management and O&M for certain pilot zones to the
1068
307
Two main problems are evident in Bangalores water supply. First, the supply to
the Boards consumers is erratic. Secondly, a large part of Bangalores population is
not served. These problems can in turn be explained by a number of factors. In
terms of unreliability, the scarcity of raw water is an important restraint, especially
since the T.G. Halli reservoir is now yielding an abysmal amount. In addition, the
250-km-long distribution network in the inner parts of the city is some 70 years old
and the supply to this area is therefore not satisfactory. Damage to the pipes due to
corrosion and poor connections leads to leaks amounting to about 37-39 percent,
though possibly closer to 50 percent. Some non-revenue/unaccounted for water is
lost due to unauthorised tap connections and to the so-called public standposts
(more on which below). The Water Board is required to levy charges to provide
revenue sufficient for adequate maintenance and depreciation (Sec 16 (1)(a)), and
shall create a reserve for such improvement works that the Board have to execute
to provide adequate water supply services (Sec 24A). Nonetheless, leakage has remained at an unacceptably high level. This is remarkable when water availability is
already circumscribed by competition, the capacity of existing pumps and feeder
mains, and the allocation ceiling on water from the Kaveri.
Considering migration, the high daily influx of a floating population (consisting
of commuters as well as business people staying in hotels), and the increasing density of the city, the demand for water and for water connections will continue to
rise. The problem is compounded by rising standards of living and purchasing
power, meaning more households filing applications. New houses and entire residential areas so-called BDA layouts are regularly added to the Boards list of responsibilities. Given also that the total amount of water to distribute has recently
been augmented and that the Cauvery supply project Stage IV, Phase II is the last
extension planned, it seems unlikely that the lpcd will ever reach parity with the Indian norm for a metropolis.1071
Those not served by the Water Board are predominantly the slum dwellers lacking khata and mostly also the ability to pay a connection fee, the cost for a meter,
and/or the monthly charge. Apart from these, there is a large group of extremely
poor whose dwellings are not pukka but consist of shelters, or are made of mud,
multinational companies M/s. Suez Lyonnaise des Eaux and M/s. Vivendi Environment was discussed. However, the plans were questioned in 2001 and therefore never materialised. Connors,
p. 121, has described how much of this opposition came from Water Board staff: privatisation
would reduce opportunities for cream skimming among the Boards lower-level engineers
who have tasks such as meter-reading among the customers. In other words, the possibilities to
demand untraceable speed money risked being heavily circumscribed with a new ownership and
management structure.
1071
The Water Board initiated Stage IV of its Cauvery water supply scheme in 1995. Improvement of the sewerage system and decreased leakage are parts of the project, the last phase of
which is yet to begin after many delays. It is financed with loans and grants from international aid
and lending agencies such as the World Bank, the Japan Bank International Corporation (JBIC),
the Australian Agency for International Development (AusAID), HUDCO, and others. The
JBIC contributes to Phase II of the scheme.
308
bricks etc. There are also slum areas that are not notified and which stand under a
constant threat of demolition. All in all, several million people in Bangalore alone
suffer not only from these conditions, but from a piece of legislation unable to recognise them as citizens and therefore potential customers.
Those living outside the borders of the erstwhile Corporation the core city
area belong to another group of people not enjoying the Water Boards services.
As we will see, the Board regards only a certain part of its actual jurisdiction as its
responsibility.
The Water Board is in charge of between 3,000 and 6,246 wells in the city.1072 A
study by the Australian Agency for International Development (AusAID) in 2002
concluded that the Board uses groundwater to supply or augment the main reticulated supply. From the records, 3,296 operating bore-wells with hand pumps and
1,159 with electric pumps were identified by a descriptive location. No geographical
coordinates were available and no systematic numbering system. Further, there
were no records of the amount of water pumped, but estimates were possible on
the basis of assumed rates for hand pumps and electric pumps respectively. Information on water quality was available from samples taken at irregular intervals, analysed for a limited number of parameters.1073
The water pumped from these wells has a contamination problem not properly
attended to. At the beginning of 2008, a serious outbreak of cholera and gastroenteritis was reported: many hundreds of people were forced to seek medical treatment, and the problems remained for more than a month in several areas.1074 The
mass-media reported that the Water Board will, for the first time, test groundwater
from all the 3,000 bore wells across the city for contamination Dug over the last
20 years by different agencies such as Karnataka Slum Clearance Board and [the
Corporation], the responsibility for the maintenance now lies with the [Water
Board] (emphasis added).1075
Consumers grievances pertaining to water supply and sewage disposal are regularly redressed in so-called water adalats held at the local service stations.1076
2.2.3 Unclear jurisdiction
The Water Boards jurisdiction is unclear, mainly in the geographical sense, but also
in terms of the rights it is empowered to exercise and the obligations, responsibility
and accountability incumbent upon it. The Water Act is an Act to make provision
for water supply, sewerage and sewage disposal in Bangalore Metropolitan Area,
according to the Preamble (emphasis added). The definition of this Area should be
1072
Information differs, but the higher number is according to BWSSB, p. 12.

AusAID, Executive Summary. It was also observed from the statistical analysis of the limited
data sets that the pumping rate from an individual borewell was unlikely to be more than about
2.5 litre/second (2000 gph). Cf. Chapter III above.
1074
Anonymous 2008a; Anonymous 2008b.
1075
Anonymous 2008d.
1076
Adalat is an Urdu word meaning law court. Here it refers to the hearing of customers complaints about bills and the solving of disputes in an informal manner.
1073
309
the same as that of the Bangalore Development Authority,1077 thus including the
core city, the former municipalities and the 110 villages now constituting Greater
Bangalore. This means an area of 741 km2 and a population of some 6.8 million
people.1078
The Water Act nevertheless defines this Area as the Bangalore Urban District,1079
which includes Greater Bangalore with its former municipalities and villages, as
well as 550 more villages in the four Taluks (Sec 2(1)).1080 If we compare this with
the Karnataka Urban Water Supply and Drainage Board, its Bangalore division includes the southernmost Taluk of the Bangalore urban district, Anekal.1081 In other
words, it leaves the north, south and east Taluks to the Bangalore Water Board. But
Anekal is clearly situated within the Metropolitan Area and may hence be under a
double jurisdiction, though effectively being supplied by the Drainage Board.
The Water Boards website has, nonetheless, stated for several years that the jurisdiction is the 100 wards of the BMP (the core city of Bangalore), and newly developed BDA Layouts, but without any further specifications.1082 When asked
about these issues, the officials at the Water Board referred to each other.1083 One
person finally held that only the (erstwhile) Corporation area was included in line
with what the web page states. It was apparent that none of the officials saw any
problems in there being uncertainties about the spatial extent of its authority. One
official added that when a residential area in the (former) municipalities was badly
in need of water and asked for assistance, it was usually supplied by means of tankers sent by the Board (the price paid was not revealed). In practice, the Water
Board would thus not always insist on the Corporation jurisdiction. As a matter of
fact, though, before the extension project described below, it was essentially only
the core city that was supplied with water via the Board.
The exact boundaries of the jurisdiction are seemingly not as well defined as required by the rule of law. Without clear geographical limits for the mandate and obligations of the Water Board, the practical possibility for someone located in the
outskirts of Greater Bangalore to claim his or her legal rights to water is thereby
largely diminished. No court decisions on the Boards geographical extension have
been found. Were a court asked to try the question, the discretionary stance of the
1077
BDA web page BDA Jurisdiction.

Cf. Chapter III.
1079
In this Act, unless the context otherwise requires,(1) Bangalore Metropolitan Area means the area of the Bangalore District urban and includes such other areas adjacent thereto as the State Government may by notification
from time to time specify (Sec 2).
Such notifications should have been issued for connecting the 72 wards in the former municipalities under the GBWAS Project (cf. below), but have not so far been located.
1080
Greater Bangalore includes one village in Anekal and 46 villages in Bangalore East Taluk.
1081
KUWSDP web pages Jurisdiction; Bangalore division.
1082
Water Board web page Help/Faq .
1083
Personal communication, Water Board, engineer. January 8, 2007, Water Board Law Officer.
January 13, 2007, Water Board Chairman. January 25, 2007.
1078
310
Water Board would be struck down, but court proceedings are costly and may take
years. There is, however, law both to limit the tasks of the Board and to extend its
responsibilities.
2.2.4 Limits to responsibilities and powers
The Board is charged with the general duty of supplying water to Bangalore, and
thus far it would seem as if the right to water corresponds to obligations of a responsible body. However, a look at some relevant provisions shows clearly that
what should be obligations are, rather, formulated as powers of the Board.
In terms of water supply for domestic consumption, the Water Act stipulates
that the Board may on application arrange to supply water to the building (Sec
32(1)). In practice from information on the Boards web pages the applicant is
required to own or live in a house for which there is a khata issued.1084 Non-pukka
dwellings do hence not seem to be covered by this provision.
The Water Board is not required to do anything which is not practicable at a
reasonable cost (Sec 15(3)). Water is supplied to houses otherwise than through
pipes only by way of exception. For instance, tanker delivery is conceivable where a
danger to health arises from the insufficiency or unwholesomeness of the existing
water supply, where public supply is required and where it can be provided at reasonable cost. The State Government takes the ultimate decision on any issues of interpretation.
The extent of the Water Boards responsibilities was, however, reviewed by the
Karnataka High Court in the case Gowramma v. State of Karnataka. Justice Hari Nath
Tilhari first made a point of each and everyones constitutional right to water as a
right to life under Art 21:
In this context, we have to read the provisions of the [Water Board] Act. The
Legislature has enacted Bangalore Water Supply and Sewerage Act 1964 as its
Preamble indicates to make provisions for supply for water The object of the
Act has got to be kept in view and the establishment of the Board has also been
done to fulfil that object to implement the provisions of the Act, so that proper supply of water may be made to the people (emphasis added). 1085
Apart from conferring a power on the Water Board Sec 32 enjoins it to make arrangements for supply of water. An application for a new water connection had
therefore been rejected illegally, especially as there are many ways and means provided under the Act for supply of water. In other words, it is indicated although
not expressly laid down that the word may in Sec 32 is to be read as shall and
that a far-reaching obligation rests with the Board.
It was further held that
1084
The Board requires a tax paid receipt. The Corporation or BDA must have approved water
supply in the area, and further a Road Cutting Endorsement must be issued by the Corporation.
The application form as such is charged Rs.30. Water Board web page Procedure/To get connection.
1085
Gowramma v. State of Karnataka ILR 1994 KAR 2649 = 1994(4) Kar L.J. 22, para 8.
311
[t]he Authorities such as [the Water Board] is a public welfare institution. It is expected that the Officers functioning therein particularly the Chairman of the
Board should keep in view that water is an essential requirement and amenity. One requires at least unpolluted air and unpolluted water. It is not just and proper on the
part of the Authorities to reject the application for supply of necessities particularly the
Authorities who have been empowered to grant permission or to make supply of
those necessities such as water.1086
The judges order refers to the owner of a house with a proper khata, located within
the core city. No hard questions came up for interpretation as the issue was solved
within the framework of the Water Act. However, it was laid down that the Act is
to be read in the context of Art 21 and the right to life was emphasised a number
of times. The object of the Act and of the Board is to provide water to the people.
Reading the Water Act against the history of its enactment, it may seem permeated with financial tones rather than an intention to provide for a supply of goodquality water in a sustainable manner to everyone in Bangalore. The legislator (read
the World Bank) had one clear idea, this being to constitute the Board as a unified
institution for the costly Cauvery supply project. The Act, it could be said, was predominantly written as a piece of legislation to regulate the Boards operations and
the powers it needed to possess not the water users need for and right to potable
water, nor the ensuing obligations on the Board to provide this or remedies for
non-performance.
Nonetheless, Justice Tilharis inclusive approach to the Gowramma case, applying
the Water Act in conjunction with the precedents on the human right to water under Art 21, stands as the authoritative interpretation of the intention and object behind the applicable provisions.
2.3 Financing the water supply

2.3.1 Tariffs
As mentioned, the Water Board operates on a no profit, no loss basis,1087 and is financed through water revenues only. The Water Act stipulates that for all water
supplied, payment shall be made (Sec 31). For the purpose of carrying on its operations, the Board shall levy rates, fees, rentals and other charges and shall also be entitled to vary them. The tariffs are to be set so as to provide sufficient revenue
to cover operating expenses, taxes and interest payments and to provide for
adequate maintenance and depreciation;
to meet repayments of loans and other borrowings;
to finance normal year-to-year improvements; and
1086
Ibid, para 12.

No part of the revenues of the Board, after meeting the expenses referred to in clauses (a), (b)
and (c) of sub-section (1) shall be used to augment the reserves of the Board other than the reserves
referred to in sections 24 and 24-A or for the general purposes of the Board including expenses
in connection with capital works, other than improvement works (Sec 16).
1087
312
to provide for such other purposes beneficial to the promotion of water

supply and disposal of sewerage in the Metro Area as the Board may determine (Sec 16).
The level of the tariffs is set by the State Government. Prior to 2005, only two domestic slabs existed, where the lower was charged Rs.115 per month for any consumption between 0 and 15,000 litres. The adjustment, with its substantially decreased price for the lowest slab, was meant to help slum-dwellers get individual
connections and stop using public taps because the Board wanted to shut these off
(cf. next sub-section). As from February 2005, the following applies:
Table 5. Water Board tariffs.
Consumption Slab, litres
0 8,000
8,001 25,000
25,001 50,000
50,001 75,000
75,001 100,000
100,000 and above
Sanitary charges for domestic connection
Tariff per kilolitre, Rs. Minimum Charge, Rs.

6.00
48.00
9.00
201.00
15.00
676.00
30.00
1,326.00
36.00
2,226.00
36.00
5,826.00
(i) Rs.15 at flat rate for consumption of 0 25,000 litres.
(ii) 25,001 50,000 litres: 15% on water supply
charges per month.
(iii) 20% of water supply charges per month for consumption of above 50,000 litres.
From Water Board web page Water tariff and prorata.
As can be seen, the Water Board applies a volumetric-consumption-based charge

instead of a flat-rate tariff.1088 Premises with a well, which do not take water from
the Board but is connected to the underground sewerage and drainage network
(UGD connection) pay Rs.300 monthly in addition to the sanitary charges.
In other words, for what is considered a basic monthly need of up to 8 kilolitres
per household, the tariff is very low, and then the price progressively rises. Being
metered, the size of the consumption is both transparent and kept under control.
Nevertheless, the slabs mean that a household consuming for instance 15,000 litres
in a month will pay Rs.111 (8x6+7x9), but will anyhow be billed Rs.201, the minimum charge. The pricing incentive to reduce water consumption within the slab is
therefore negative. On the other hand, the comparatively low price allows for the
better-off among the poor to pay for the Boards services.1089
The non-domestic tariff starts at Rs.36 per kilolitre, whereas the industrial tariff
is a flat Rs.60 per kilolitre. There is a sewage cess on top of these tariffs, making it
1088
1089
Cf. Vishwanath 2007, blog: Deconstructing water tariff.

That is, were they only to pay for the water supplied, not connection and meter charges, etc.
313
high compared with other Indian cities, and substantially higher than what is paid
for a tanker of groundwater (between Rs.80-300 for 7 kilolitres depending on season and location). A private provider rather than the Water Board thus becomes
the economically rational option for all non-domestic users.
The factual cost of pumping, treating, delivering, etc. the water throughout
Bangalore is higher than what is charged from domestic consumers. The cost is
largely because of the very high electricity costs for pumping the water from Kaveri
100 km up a steep gradient. The production cost has been estimated to Rs.23.13 a
kilolitre or even Rs.34.25 a kilolitre if the leakage factor is considered. 1090 The domestic sector is the Boards major consumer group, not (only) because of the high
tariffs for non-domestic users but because Bangalore is a post-industrial city where
service providers (IT and call centres) dominate the non-domestic demand. The
aim, if any, of attaining cross-subsidisation by making non-domestic users pay a
much higher tariff is thereby not likely to be reached.
In the manual on the human right to water, mentioned in Chapter V, COHRE
et al. analyse in detail different tariff design options. A flat rate does not alter with
consumption and therefore does not require a meter. This makes the flat rate simple to administer, but it also tends to reduce affordability for low-volume consumers. However, it does not encourage sustainable use. In comparison, volumetric
consumption or increasing block tariffs (IBT) means that the price per block (slab)
increases as consumption increases. The lowest block is typically charged below the
actual cost of producing and delivering the water, and successive amounts are
priced at increasingly higher per-unit rates. This can allow for cross-subsidisation,
as it makes low-volume, essential (basic need) uses more affordable at the expense of high-volume users. The progressively increasing price can also function as
an incentive to encourage water conservation, thereby reducing both average and
peak demand. It is therefore to be preferred from a sustainability point of view.1091
COHRE et al. however stress that the
[s]uccess of the IBT depends upon the accurate sizing of the initial subsidised
blocks. If the quantity is too generous, too wide a segment of the population will
benefit from the cheaper water, and many people who could afford to pay at least
cost price will receive water at a lower rate.1092
Unfortunately, this describes the situation in Bangalore: the middle and upper income groups are the main beneficiaries of the subsidised water tariff nearly all of
whom can afford to pay the true cost of water, as S. Vishwanath concludes.1093
There is also no incentive to be conservative with the water within the slabs 9,000
and 25,000 litres being charged the same amount, etc. The result of the tariff being
lower than the production cost is that [t]he more domestic connections the
1090
G.S. Sastry, Institute for Social and Economic Change, quoted in Vishwanath 2006.
COHRE et al., pp. 136f.
1092
Ibid, p. 137.
1093
Vishwanath 2006.
1091
314
BWSSB gives out, the more it stands to lose monetarily. 1094 This is the effect at
least until a household consumes more than 50,001 litres monthly and pays Rs.30
per kilolitre for what exceeds this limit.
Conversely, COHRE et al. continue,
care needs to be taken to ensure that poor households that may share a single
connection or larger households have sufficient water and are not pushed into the
next price bracket.1095
A disadvantage of this system is thus that it creates a strong incentive for utilities
to prioritise provision of service high-volume users, who are normally upperincome groups, as this allows utilities to charge more per litre used. However,
COHRE et al. add, clear service delivery targets can mitigate this disadvantage.1096
Doubtless, such a target provision is fundamental. In the case of Bangalore, the object of the Water Act is too vaguely formulated even when read with Art 21 of the
Constitution. A new provision would be needed in this regard. And the Board together with the Government needs to introduce more slabs with a higher price introduced for consumption of water over, say 6 kilolitres (as in South Africa) and/or
10 kilolitres monthly. This higher tariff is not only to meet the actual production
cost, but must to an increasing extent also function as an incentive for more savvy
(i.e., reduced) consumption of water.
Hiked tariffs were announced before the summer of 2008, with a raised ceiling
of the lower slab. A Board Engineer laid out the broad lines of the new price system:
Revision will be done scientifically. A study of water consumption pattern is
over. Water consumption slabs will be revised based on the consumption pattern.
The initial slab is likely to be between zero and 10,000 litres.1097
The Board can thereby be expected to stop providing the first 8,000 litres at the
present, comparatively affordable price. It remains to be seen how the basic needs
of Bangalores poor sections are met given their capacity to pay.
2.3.2 Public standposts ousted
Public water standposts are a common sight in the urban environment of most developing and newly-industrialised countries. They are typically geared towards citizens not connected to the public distribution network or with access to a well of
their own in other words, slum dwellers not living in pukka houses. The standposts can be seen as group connections to the distribution network, and are of the
greatest importance to ensure water as a human right.
1094
Ibid.
COHRE et al., p. 137.
1096
Ibid.
1097
A revision proposal was sent to the government for approval in March, 2008. Anonymous,
2008f.
1095
315
In 1999, a study team located over 23,000 standposts in Bangalore.1098 Three

quarters of them were standpipes and the rest bore-wells and hand-pumps. Each
public standpost served 20-30 households. The majority were observed in residential areas of urban poor, and only some 4,300 were located in notified slums. From
the survey it was concluded that 80 percent of the total number of standposts were
working, of which 31 percent yielded water daily and 65 percent on alternate days
only. The major problem as expressed by the users was the irregular timing of the
water supply, and the quantity itself.
Of fifty water-quality samples, 34 were declared unsatisfactory due to the presence of coliform, e-coli bacteria and a high level of turbidity. Leakages occurred at
up to 40 percent of the standposts. Notwithstanding these and other problems, almost 80 percent of the respondents showed satisfaction with the quality of the water.1099
The Water Board recognised some 7,000 standposts and public taps as legally
connected with its express permission but there were also some 8,000 illegally
connected ones not billed for. Some 6,000 have been disconnected or plugged. 1100
Standposts are important bait for politicians who need slum dwellers as a vote
bank, for which reason a disconnected tap or standpost is often opened (only) after
pressure exerted by politicians.
Whose are the standposts, then? Connors writes that when the responsibility
for water supply was transferred to the Water Board in the early 1960s, the Board
assumed the task of distributing water for public consumption through a network
of free, public taps. The [Water Board] was not, however, responsible for meeting
the costs of this service (emphasis added).1101
The responsibility for paying the costs lies instead with the Corporation. Sec 38 (1)
of the Water Act states that the Board
may, subject to the payment by the Corporation of such charges as the Board may determine, provide gratuitous supply of wholesome water to the public within the
City of Bangalore (emphasis added).
The provision applies, for unknown reasons, only to the City rather than the Metropolitan Area as the rest of the Act does.1102 The term may indicates that it is left
to the discretion of the Board to decide whether it will provide the public with water accordingly.
The Boards charge for this gratuitous water supply was, according to Connors,
determined through joint gauging of the water flow undertaken by the [Water
1098
ORG-MARG Survey, summarised in the TCE Final Report.

Ibid.
1100
Connors 2007, p. 135.
1101
Ibid, p. 134.
1102
The Water Act defines city of Bangalore according to an Act which was repealed in 1977,
(no consequent amendment made). The term should now refer to the area under the Corporation, thus only somewhat smaller than the Metropolitan Area after Greater Bangalore came into
force. The intention may have been to provide for standposts in urban areas, but not in villages.
1099
316
Board] and the Corporation every few years. The last gauging exercise took place in
1997 when engineers estimated that the average public tap supplied 22,000 litres of
water per day, billed at a cost of Rs.3,000 per tap per month. 1103 Considering that
the production cost was then estimated to Rs.16 per kilolitre, this was a heavily
subsidised price. However, from some point in time the Corporation no longer
paid the bill for the water supplied and the O&M of the standposts, and arrears accumulated. During 2002, the Corporation passed a Resolution with the effect of
cutting funding for public taps, as it did no longer agree to pay the charges. In
2005, the debt to the Board amounted to Rs.160.75 crores (Rs.1.6 billion).1104 Connors refers to a letter sent from the Corporation to the Urban Development Department, asking the Board to at least provide water through street taps to the
public and that the cost of the same should be borne by the Water Board.1105
In practice, the Board is doing just this in many cases continuing its supply via
taps. Nevertheless, this is not compatible with the requirement that for all water
supplied, payment shall be made (Sec 31). Provision of water for free would be a
great burden for which the Water Act and thereby the Boards financial capacity
were not designed. A drive to progressively close down the public taps began, regardless of the many protests.
Did the Corporation violate the unconnected Bangaloreans human right to water by its lack of willingness to pay? The answer must be yes. In Gowramma, it was
established that the Water Act was enacted and the Water Board constituted with
the intention of providing water for the people. The Board is therefore the actor
empowered to supply water, to the exclusion of the Corporation or any other actor
within its jurisdiction. However, the Boards free supply of water to the public is
conditioned in Sec 38(1) by the Corporation reimbursing the cost. May in the provision cannot be interpreted as shall with less than this payment being made, considering also the clear provision in Sec 31. The Board is thus not obliged to provide
water gratuitously, and the poor have no right to claim water from the Board via
public standposts. The claim must fall back on the Corporation, being the states
local body in the three-tier structure of self-government. The financial means will
be public funds, meaning that the Corporation may just as well transfer such
money to the Water Board as is stipulated under Sec 38.
The situation is nothing less than a clash between the intentions behind the Water Act and the Boards existence in conjunction with Art 21 of the Constitution,
and the wording of Sec 31 and 38. The Water Board has doubtless a duty as well as
the power conferred to the Water Board to arrange for a supply of water, and this
duty is connected to everyones right to life, but only for a fee. An amendment to
1103
Connors 2007, p. 134. There are reasons to doubt that the figure stating 22,000 litres is accurate, if compared with AusAIDs (2002e) Overview Report on Services to the Urban Poor.
1104
Ibid, p. 135; Sreedharan; Personal communication, Water Board Social Development Unit officer. January 8, 2007.
1105
Connors, p. 134, with reference to letter No. MD:PR:8:2002-03, dated May 15.
317
the Water Act, though, would enable the Board to cross-subsidise the cost of the
water to those unable to pay within its own financial budget.
What does it then mean to the Board that it is declared a public welfare institution? Clearly, its approach is that the poor have to and want to pay for their water
consumption. On its web page Services to urban poor, the Board states that
[i]t is the moral, social and economic obligation of BWSSB to provide drinking water to
every citizen in the metropolitan area of Bangalore Public taps are not an option. The
poor, after having been through the drudgery of collecting water from public taps
are happy in the encouraging atmosphere created for availing individual household
connections. The culture of user charges is very well accepted. The results of the Willingness to Pay survey conducted under the Master Plan Project indicate that the poor
are willing to pay for improved services and this has been borne out during the
course of our work (emphasis added).1106
This approach is apparently endorsed also by the Boards Legal Officer, who sees
his role as the representative of the Board in the courtroom. When asked for the
present study about his interpretation of Sec 38, the Officer first excused himself
by saying that he had only had the position for some eight to ten months. It then
became clear that there are certain provisions in the Act which he had never looked
into, and he therefore lacked any conception as to how they may be understood. In
Sec 38 in his printed version of the Act, I saw the word gratuitously crossed out
by the person who had this position before me, he explained, and interpreted it as
that no rule on free public water supply exists.1107
Furthermore, the Legal Officer was not aware of the content of, or the established interpretation of, Art 21 of the Constitution, and had hence never reflected
upon what a right to water would mean for an institution such as the Water
Board. To the best of his knowledge, there was no relevant case law decided in the
courts (the Gowramma case was, for instance, unheard of). From his perspective, the
objective of the Water Board is to provide wholesome water to consumers who pay
according to a tariff for this service, and Water Board water is consequently only
for those who have the ability to cover the costs of connections etc. to their
houses.1108
With such an approach to rights, obligations and issues of access to water, the
poor are referred to other strategies for coping with their needs.
2.3.3 Connecting the urban slums
As analysed by Connors, external actors made a series of decisions which jolted
the [Water Board] out of its longstanding complacency towards the poor, obliging
it for the first time to consider the provision of household connections in
1106
Water Board web page Services to urban poor. The Master Plan Project mentioned here refers to the AusAID study and pilot, described next.
1107
Personal communication, Water Board Legal Officer. January 13, 2007.
1108
Ibid.
318
slums.1109 One such jolt consisted of a foreign donor, AusAID, wanting to implement a Water Supply and Environmental Sanitation Masterplan Project in Bangalore. The urban poor and disadvantaged groups have previously been overlooked
in the delivery of these basic services, AusAID noted. A strategy will be developed to [liaise] with these groups and to provide project assistance in a holistic,
demand driven way that still recognizes the commercial requirements of the
[Board].1110 During 2000-2002, among a number of other steps taken within the
Masterplan Project as a whole, three representative slums were therefore selected as
pilot areas to enable the Board to plan and implement innovative options for delivery of services to the urban poor.1111 The aim was that the Social Development
Unit, instituted for the cause, would mainstream the lessons learnt from the Project
into the Board.1112
Of key interest here is the concept of willingness to pay (WTP) and the fact that
such willingness has been assumed to exist whether or not various investigations
show this convincingly.1113 According to the survey mentioned, commissioned by
AusAID, up to four of five respondents showed a willingness to pay something for
distinct improvements in the water supply compared to the existing situation.
However, it was found that low income households in slum areas are not willing
to pay much more than 1% of household income, which was equivalent to
monthly payments between Rs.16 and Rs.29 per household. The policy implications concluded from these results were that
[t]he WTP levels indicated in the survey are most likely underestimates of actual
WTP for improved service, because of the poor water supply situation that has
prevailed in Bangalore for some time and the apparent low level of credibility of
the BWSSB as a service provider. There is evidence elsewhere in India that if tariffs are set based on real costs of service provision, if consumers are confident that
they are being charged a realistic price and if there are perceptible increases in service levels and reliability, then consumers will recognise the value of the service
provided and will respond positively to tariff increases to obtain the required levels of
service (emphasis added).1114
1109
Connors 2007, p. 117.

AusAID 2002f.
1111
Ibid; Connors 2005, 2007; Water Board web page Services in urban poor; ADB/Tigno.
1112
Cf. Connors, pp. 146ff.
1113
It lies outside the aim of this study to discuss the concept and the methods of calculating it as
such.
1114
AusAID 2002c. The survey questions are not revealed in the available summary. It only states
that [r]espondents were presented with scenarios that represented distinct improvements over
the existing situation and were asked how much they were willing to pay for these improvements, ibid. The results from the low-income households WTP for water from four different
options of supply (the figure in brackets is the percentage of households that were willing to pay
for this option):
from water tanker: 1.1% of household income (81%)
by shared connection:
- own house 0.9% of household income (82%)
1110
319
Thus, although the survey result on the one hand indicates an almost negligible
willingness in the sense that the amounts to be paid were significantly lower than
the then lowest tariffs for domestic use,1115 the conclusion was that if only consumers perceptions were changed, then they would respond positively. And this perception would change if only consumers are confident that they are charged a realistic price based on real costs and that there is a noticeable increase in service
level. What is seemingly missing in the discussion is the ability to pay, given income
levels, purchasing power, minimum wages, and the fact that many extremely poor
people are leading a hand-to-mouth existence but still depend on access to safe
drinking water.1116 The quoted conclusion therefore seems to me to be the greatest
cynicism.
Salma Sadikha, who functioned as the sole official at the Boards Social Development Unit, took a more pragmatic stand based on empirical experience when
saying that poor peoples willingness to pay
does not always translate into actual payment because their eagerness to access water
often prompts the poor to readily accept the terms. After a point, they realize that
they cannot afford the amount being charged (emphasis added).1117
One can ask whether the insights and experience from the AusAID project have
led to any more permanent changes within the Board, to the benefit of the unserved. On its web page the Boards attitude is unmistakable:
These slums are posing a major challenge to sustainable water supply and sanitation system
in the city. Inadequate or poor services to urban poor has adverse impact on both
BWSSB and the general community - Unauthorised / illegal tap connections, which lead to loss of revenue;
- Damage the water supply system, as poorly made connections lead to leaks and
contamination of water;
- Run-off of Sewage in open places, sewage discharged directly into storm-water
drains, all of which lead to serious public health concerns, pose environmental
hazards and portray a poor public image of the Board (sic, emphasis added).1118
From the wordings used it can be questioned whether the Board is interested in actually offering services to the urban poor, or if the cited information is addressed
- others house 0.8% of household income (82%)
bulk metering: 0.7% of household income (63%).
1115
The Board charged Rs.115 for up to 15 kilolitres at the time. Cf. Connors 2005, p. 208.
1116
Maybe the approach to the respondents, the surveyors, or the questions were wrong. In
AusAIDs Baseline household socio-economic survey a need for clean water was most commonly
articulated, but [l]ower income households expressed a greater need for improved supply duration, perhaps on account of the fact that they lack facilities for in-house storage that are common
among the richer households, AusAID 2002a, pp. 65f.
1117
ADB/Dueas.
1118
Water Board web page Services in urban poor. Cf. Connors study (2007) on organisational
lessons learnt within the Water Board.
320
to customers who have slum dwellers as neighbours; more like a message that the
Board has a plan for dealing with this challenge. The formulation gives an impression of the Board making a clear distinction between paying customers and those
who are not, without reflection over its own role and mandate (the duty and the
power, as held in Gowramma), which is to provide water to all within its jurisdiction,
and remain a public welfare institution.
Nonetheless, the signals the Board gives are double. As a result of the AusAID
project and the installation of the Social Development Unit, the Board promoted a
water reform package available to residents in 25 selected slums over the following
five years. The Water Board thus extended its services so that
connection fees were reduced: a house with an area of 150 square feet (14m2)
paid Rs.550 (the meter cost); up to 600 square feet paid Rs.800 (meter cost
of Rs.550 + cost of underground connection at Rs.250). Houses above 600
square feet were charged the regular rate (Rs.1,850);
the connection fee could be paid in two instalments;
any proof of residence, such as a hakku patra (land grant) issued by the BDA,
the Corporation or the Slum Clearance Board; a ration card; voters ID; or
ID issued by the Slum Clearance Board was accepted instead of the khata;1119
the application procedure was simplified.
The service levels being offered to the different categories of slums were
a) individual household connections for those with land tenure and having adequate space;
b) community-level services such as shared metered connections on payment for
those communities having land tenure but not adequate space and communities without security of tenure (emphasis added).1120
As noted above, the introduction of a new slab for the first 8,000 litres charged
only at Rs.48 per month was a major part of the reform. It does not seem that the
above package was ever made applicable in other slums than the chosen ones. The
Board is also criticised for not having carried out any assessment of the package reform. The Board explained that no replacement had been found after Sadikhas
transfer to another Government department early in 2007.1121 By transferring the
1119
NGOs engaged in slum area development have long experience of what the recognition of
alternative proofs of residence means to people who have lived in an area for decades. Personal
communication, APSA representative. January 25, 2007.
1120
Water Board web page Services in urban poor. The first option refers to those notified slums
which have been upgraded and developed into pukka or semi-pukka houses by the Slum Board.
Even without adequate space for a water connection, taps, and a meter in the individual house, a
community can thus apply for a shared connection. In practice, this solution is seldom opted for,
according to Sadhika: a slum area does not consist of a homogeneous group of people with the
same needs, wants, and purchasing power. It is not easy to agree on the terms of sharing. Personal communication, Water Board Social Development Unit officer. January 8, 2007.
1121
Shivanand 2008. Being an IAS officer (employed within the elite Indian Administrative Services, with an important role in influencing and implementing government policies and deci-
321
only working officer from the Social Development Unit, it was in effect closed
down and so were the possibilities for Bangalores slum dwellers to access water via
proper connections.
From mass-media reporting, it also seems that the projects never fully succeeded in providing drinking water. When the Water Board connected direct lines
to each house, the public taps were simultaneously removed. Now, many residents
are forced to walk a couple of kilometres to access potable water: We got water
regularly for six months when it was launched in 2003. And then it stopped. Now
we have only the pipes, but no water, one slum resident is quoted as saying.1122
2.4 Connecting the peri-urban

2.4.1 The Greater Bangalore Water and Sanitation Project
As related in Chapter III, Bangalore is growing not only in terms of people moving
into the city, but the citys administrative borders have expanded to comprise a
much larger area. History shows that this has been a continuous process of steady
outgrowth, but no previous step was ever comparable with the recent decision to
incorporate some 500 km2 of municipalities and villages in one move. Almost parallel with the incorporation of eight municipalities and 110 villages into the city of
Bangalore, a project aiming to supply much of this area with water from the River
Kaveri was gradually implemented. However, the Greater Bangalore Water and
Sanitation Project (GBWASP, hereunder: the Project) was initiated to enhance the
level of water supply and sewerage service in the eight municipalities, before the
merger was properly on the agenda, and the two processes were not formally
linked. Some aspects of the Project exhibit clear linkages to the human right to water, in particular concerning the pricing of water services.
The main objectives of the Project, as formulated at the outset, were to
provide
p
Kaveri water to the municipalities amounting to 120 lpcd;
reform the urban local bodies (ULBs) and ensure financial discipline;
introduce privatisation of the O&M; and
provide an underground drainage system and sewage treatment plants.1123
The Project aimed not only at supplying water and sanitation to the growing population and commercial interests of the municipalities, but also at reforming them by
ensuring financial discipline, and introducing privatisation of the O&M at a later
stage.1124 A representative of the World Banks Water and Sanitation Program was
involved in this work by drafting the Terms of Reference for consultants.
sions), Sadikha was not expected to stay at any certain position for a prolonged period, but
wanted to in order to finish the tasks she had begun. Personal communication. January 22, 2007.
1122
Shivanand 2008.
1123
According to the first Notification, G.O. No. UDD 27 MNI 2000 BANGALORE, dated December 26, 2003.
1124
GO No. UDD 27 MNI 2000 Bangalore, dated December 26, 2003.
322
The Government of Karnataka planned that the entire sewerage system project
was to be financed by borrowings from an external agency, the World Bank. For
this component only, and at the express request of the Bank, an Environmental
Impact Assessment was carried out. However, commencement of the drainage system was from the very beginning planned for a later stage and eventually came to
be decoupled from the implementation of the water supply. Water was thus supplied, but the sewage disposal was not catered for.
Though consultants were involved earlier, the project was formally launched
only at the end of 2003 and, despite many promises during the process, four years
later water was being delivered only in pockets.1125 This was unfortunate for the inhabitants of the areas during the long delay as the ULBs, although still responsible
for the water supply until Greater Bangalore was a fact in January 2007, neither
maintained their groundwater structures nor the pipes, taps, standposts, etc. As a
result, most residents in the municipalities were left to their own coping strategies
to access freshwater. The groundwater tables dropping to precariously low levels
and large areas being deemed overexploited, the ULBs could, anyhow, not have
effected the permissions issued by the Karnataka State Pollution Control Board
and the Central Groundwater Authority to drill new tubewells.
For the poor, this was a particularly tough time. The slum dwellers, most of
whom live under conditions of such extreme poverty that they cannot afford to
boil their water, seldom had access to potable water even for drinking. At the end
of 2006, the authorities knowing that they would not be accountable once
Greater Bangalore was created did little or nothing to mitigate the scarcity. They
referred to the Water Board, and everyone repeated the mantra: Kaveri water is
coming soon.1126
The data on population and properties initially used for planning the GBWAS
Project were not accurate, with the result that the demand projections were severely
underestimated. For instance, census figures from 1991 were used even after census 2001 was published. Connection of 120,000 households was thus planned for.
But the estimations already became outdated during the early planning stage, due to
the rapid growth of these areas. A new study revealed that around 40 percent of the
municipalities area had not been covered by the plans. More than double the
amount of properties and even several newly-created wards needed connection.
In addition, large proportions of the green belt area that was to remain undeveloped had in fact been encroached upon and the Government made it clear that
these areas were also to be included in the project.1127 An additional estimate was
prepared and re-tendered to cover in total some 200,000 connections. However,
1125
Even at the end of January 2008, water was not supplied and a chairperson of the Water
Board stated that at the years end, the concerned 72 wards were set to receive Kaveri water, Lalitha.
1126
Personal communication, Yelahanka Municipality Corporator; Inhabitants of Yelahanka Old
Slum. November 29, 2006.
1127
Personal communication, Water Board engineer. January 8, 2007.
323
later estimations put the figure closer to 500,000 properties.1128 These faulty foundations for the Project contributed to delaying it, not to mention the completely different price tag of the demand for water supply.
2.4.2 Users participation and capital contribution
In a large project, aiming to connect many million people to a central water supply
network, the question of end-user participation would seem fundamental. The Project did not, however, provide for any public participation or citizens involvement.
A help-desk was eventually set up after criticism had become louder, and was
funded by USAID. A document with answers to Frequently Asked Questions was
also distributed.1129 Certain actors put pressure on the Water Board and the other
authorities involved to make room for representation. Three main actors can be
identified as having been involved during parts of the process: the Janaagraha
NGO, the Water and Sanitation for the Urban Poor partnership, and the Campaign
Against Water Privatisation. They had different approaches to the Project and its
various components, and were likewise met with different attitudes by agencies,
other organisations, and the mass-media.1130
Janaagraha had the intention to bring in a component of citizen participation to
the project, in a formal, institutionalised manner.1131 It described itself as a platform using information dissemination to encourage users to pay the BCC (cf. below). The greatest concern, it was perceived, related to an information vacuum that
needed to be filled. Several letters were sent to the Steering Committee and representatives of Janaagraha met with the Urban Development Department. Nevertheless, it seems from proceedings and minutes that the NGO and its work were
largely ignored by the Project Steering Committee in charge. Janaagraha disengaged
from the Project in February 2006, openly communicating that it was discontented
with the failure to involve citizens.1132 The Water and Sanitation for the Urban Poor
partnership never gained the footing it wished for, partly because the Campaign
Against Water Privatisation counteracted all its efforts.1133
Of the cost for the water supply section of the Project, much was to be raised
through loans. A smaller part was to be given as grants by the State Government,
and 20 percent would be raised via collection from the users. This capital contribution approach was a novelty from the onset, and meant that all beneficiaries the
1128
Ibid.
Nowadays there is also a nice web page of the KUIDFC on GBWASP.
1130
A very brief account is given here only, because many others have described, analysed, and
criticised or are conducting PhD studies on the events and actors involved.
1131
Janaagraha web page Past programmes; Memorandum of Understanding signed in March
2004.
1132
Many held that Janaagrahas role was to ensure that the process of privatising the water supply
took place smoothly, and that the criticism of it from other NGOs in the water field was the reason for Janaagraha to opt out of the co-operation. Personal communication with Convenor of
the Campaign Against Water Privatisation. December 30, 2006.
1133
Ibid.
1129
324
water users were to pay a once-off lump sum to cover part of the costs of laying
the distribution network. The Government therefore introduced the concept of
Beneficiary Capital Contribution (BCC).1134 On top of the BCC, however, there
would be additional charges to cover the Water Boards costs for access and connection, as well as the costs for road cutting etc.
In a Government Order of 2003, the BCC was set at Rs.8,500 per domestic
household. However, feedback from citizens in the municipalities, recommendations drawn from a willingness to pay study, and suggestions from representatives
of the municipalities, etc., came to change this. Following discussions on the situation, a slab system with differentiated BCCs for various categories of user was introduced instead, according to which smaller properties should pay less.1135 The
Government eventually issued a new Order, quashing the previous one, to effectuate this decision. The lowest BCC was consequently set for sites measuring up to
40x60 square feet and flats up to 1,200 square feet, for which Rs.10,000 was
charged. If payment was made after July 31, 2004, this amount was raised to
Rs.15,000.1136
Interestingly enough, the lowest slab was thus increased from Rs.8,500 to
10,000 for the smallest size of household. Further, future beneficiaries were expected to make their payments long before any signs of an actual water distribution
network were visible (delivery only started towards the end of 2007).
By mid-2004, very few BCC payments had been made and some municipality
Commissioners observed that the poorer households were not coming forward to
pay.1137 The Project Committee was of the view that the differentiated slabs had
been created to accommodate to the poorer households, and that field studies indicated that they were willing to pay for services. The Committee also noted that
many of the poorer households had capacity to pay as they also could spend on cable
TV (emphasis added).1138 It was understood at this point that a very large number
of households fell within the two lower slabs, and that this might also mean a substantial drop in the potential for collection of the BCC.
Early in 2005, it was recognised that many financially weak households were living in sites smaller than previously assumed, and a new Government Order was decided. This time, sites measuring up to 600 square feet were only to be charged
Rs.2,500. In the highest slab (2,400 square feet ), the BCC was set at Rs.15,000.1139
These charges still obtain. The deadline for paying was moved to July 31, 2005. If
the BCC had not been paid by then, additional penalties (calculated from August
1134
GO No. UDD 27 MNI 2000 Bangalore, dated December 26, 2003.

Proceedings from meeting of the Steering Committee, dated January 28, 2004.
1136
GO No. UDD 336 MNI 2004 Bangalore, dated February 13, 2004.
1137
Proceedings from meeting of the Steering Committee, dated May 21, 2004.
1138
Ibid. It is noticeable that the language is below par in this part of the Proceedings. This may
indicate that there was no consistent view on the question and that there had been several reformulations before the participants to the discussion were satisfied.
1139
GO No. UDD 145 MNI 2004 Bangalore, dated February 28, 2005.
1135
325
2005 to December 2007) of at least Rs.2,700 had to be paid before the Water
Board made the individual connection.1140
Early in 2004, the Steering Committee noted that the Water Board had so far
taken up schemes to benefit the poor e.g. as a result of studies conducted by the
JBIC and AusAID but in a piece-meal manner. Studies and projects initiated by
foreign donors such as Australia and Japan had, nevertheless, put the poor in focus.
A sub-committee was therefore set up to handle issues connected with the urban
poor, including representatives of the Water Board and USAID. The group was
expected to formulate a coherent policy for water supply and sanitation strategies.
Though no formal policy has so far been adopted, the groups mere existence was
probably enough for important steps to be taken in relation to the BCC.
Early in 2008, the Water Board decided that all the 250 wards recently added to
Greater Bangalore were to be included.1141 The 110 villages, rapidly becoming more
peri-urban, were still not included under the Project, though. Since January 2007, it
has in practice been the Corporation that is in charge of the public bore-wells instead of the erstwhile Panchayats. Many villagers who are suffering from rapidly depleting groundwater levels, salty water, etc. are beginning to raise their demands for
Kaveri water. They are clearly entitled to make claims considering that they are located within the Water Boards jurisdiction and (most) have their khatas in order.
The creation of Greater Bangalore in fact meant considerable re-centralisation
in the villages: overnight, the local, self-governance bodies had to hand over to one
of Indias largest corporations. The Gram Panchayats that were in charge of and accountable for water supply, subject to recommendations from the villagers of the
Gram Sabha meetings, were replaced by one ward councillor per 5,000 inhabitants.
Ironically, one of the main aims behind the formation of Greater Bangalore was
to balance growth by providing all citizens with basic amenities on a par with the
situation in the core city. It is more likely that the villagers will have to make do
with what their aquifers can give them. Policies and guidelines on how to rejuvenate surface water tanks and harvest rainwater in rooftop structures must therefore
be implemented, on community bases or individually, regardless of whether they
are mandatory under a building bye-law.
2.5 Regulating rainwater harvesting

For expanding the Water Boards operations under the GBWAS Project, 135 MLD
was reserved from the Cauvery Scheme, Stage IV Phase II, which is planned to
augment the amount pumped from the river with an additional 500 MLD. However, this stage will not begin until mid-2008 at the earliest, and the capacity of the
trunk mains and feeder lines being installed has to be further increased to ensure
regular supply. The Water Board was early aware that water shortage precludes the
1140
Although very many of the citys residents, maybe a majority, cannot read Kannada, the application forms are available only in this language.
1141
Lalitha.
326
prospect of supplying the entire area under GBWAS Project. Even for those already connected, the Board will soon have to cut the hours of supply from eight to
six or even fewer, and/or deliver only every third day.1142 Together with raised tariffs, these methods force people to consume less water thus implementing demand-side management. Not all these incentives and disincentives are within the
Boards power to decide, though. Hiked tariffs are ultimately a question for the
State legislature.
But the Board appears to pay little attention to the limits of its decision-making
power. This shows from an interesting example concerning rainwater harvesting
(RWH). From 1 April, 2007 in the middle of the hot and dry summer all applications for new water supply and sanitation connections were held pending during
three pre-monsoon months. The Chief Engineer in charge of maintenance issues
told the mass-media that there was such a shortage of bulk water that even if the
Board had sanctioned the 2,000-odd applications filed each month, it would have
been unable to provide the service. On 1 July, with the onset of the monsoon, the
temporary ban was lifted.1143 The decision had been necessary due to an urgent water shortage, a result of the small amount of water yielded from the almost dry T.G.
Halli reservoir. The Board apparently perceived it as expedient to handle the situation in a radical manner.
In June, the mass-media revealed how the Boards executive engineers had been
ordered by means of an internal circular not to grant any new connection unless the
bye-law on RWH was met.1144 According to this bye-law, every building with a
plinth area exceeding 100 m2 and built on a site measuring not less than 200 m2
shall have one or more rainwater harvesting structures with a certain minimum total capacity.1145
The Water Board engineers were, however, ordered not to sanction any new
connections without RWH structures, irrespective of size. On 30 June, the Water
Board communicated that it had relaxed the requirement for a RWH structure for
houses on sites measuring 20x30 feet as well as for houses in slum areas, those on a
tank bed or in low lying areas, and houses considered, upon inspection, to be in an
extraordinary condition.1146
Though the relevant bye-law was already in force by the middle of 2004, it had
not been given much attention by the authority responsible (the Corporation). A
levy may be imposed for the failure to provide or to maintain RWH structures as
required, but such a sanction can be decided only by the Corporation. Under no
circumstances has the Water Board been empowered to see to the bye-laws enforcement through its decisions and operations. Postponing new connections as
1142
Personal communication, Water Board engineer January 8, 2007.

Anonymous 2007k; Anonymous 2007m; Anonymous 2007o; Anonymous 2007p.
1144
D. Gandhi 2007c; Anonymous 2007l; Anonymous 2007n.
1145
BMP Building Bye-laws 2003, No. 32, in force from 5 June 2004 and applicable within the jurisdiction of the Corporation. The details of the structure are laid down in Schedule XII.
1146
Anonymous 2007p.
1143
327
during the summer of 2007 and, even more so, the request for RWH structures to
be installed, were clearly ultra vires beyond the Boards legal mandate.
With better seasonal planning and control of available resources, and better
communication with the Corporation, the Board may have been able to avoid the
necessity to act arbitrarily. The decisions to let many thousands of connection applications lie pending and require RWH were, at the same time, rational. Given that
the city had lacked a Corporation Council for almost six months, and the urgency
of the scarcity problem, hasty action was called for. There was no time for bureaucracy. We can also presume that the decision-makers within the Board thought
themselves entitled to take the decisions in question.
The drastic moves were probably only the beginning. Officials of the Water
Board say rationing is probably the only way to ensure an equitable water supply.
During 2007, it nurtured far-reaching plans to install automatic rationing devices
that would simply cut the distribution to each household after a certain level of
consumption. Due to software problems, however, implementation of such a technical system had to be shelved for the time being.1147

Clean and sufficient drinking water can be claimed as a right in India with reference
to three legal sources. First, the importance of water for everyones well-being
should be seen as morally and universally justified a natural right. Secondly, existing international human rights law can be read so, that a right to drinking water is
already provided for in the ICESCR and other binding and soft-law instruments
or can at least be interpreted as included in the valid provisions, both of which explained in General Comment No. 15. Thirdly, Art 21 of the Constitution as interpreted by the Supreme Court in Subhash Kumar and other precedents contains the
valid positive law of India.
Nevertheless, the existence of the legally binding human right to water is not
widely known not among the general public, nor within the state authorities
charged with the obligation to provide the people with water. The present study of
the situation in Bangalore shows how ignorance of the duty to ensure the right is
prevalent. The attitude is partly explained by the fact that the Water Act restricts
Water Board operations by stipulating that all water distributed is to be charged for,
and prevents it from providing water from public standposts with less than that the
Corporation pays for this. This has the effect of excluding groups of rightfully entitled people from access to water through the Board.
Without doubt, the core issue of the human right to water is now not the right
it is the task of assuming duties and responsibilities for water supply. The major obligation resting on the state in terms of ensuring access to everyone is the regulatory
authority, including grievance redressal mechanisms and judicial remedies. The
state also needs to make allocation priorities, decide whether the costs of the water
1147
S. Shivanand 2007.
328
supply are to be met via the general tax or through direct user charges. The state is
especially needed as an actor to protect the interests of the poor section of society
whose voice is seldom heard and whose members lack sufficient purchasing power.
Few households in the Bangalorean urban environment are self-sufficient in the
sense of catering for their own needs and thus not requiring any outside system for
water supply: medium and large-scale solutions for water distribution are, therefore,
needed.1148 The costs need to be shared and here the idea of a human right becomes
relevant again: drinking water as a fundamental necessity for life from survival via
well-being to development can be a source of profit only once everyones needs
are met. Here I am not content with the 20-odd lpcd required for very basic needs
but call for a substantially higher quantity. Cross-subsidisation and a distribution
policy are thus both inevitable in modern, urban water supply.
The state is compartmentalised as an effect of divided decision-making powers
and decentralised performance. In the Constitution, the directive principles of state
policy contain guidelines to both central and state governments for the governance
of India. As a primary duty, the principles commit the state to raising the level of
nutrition and the standard of living and to improving public health (Art 47).
But things fall between the cracks, and sometimes things conveniently fall into
the shadows. When the Centre for Science and Environment and reporters from
the magazine Down to Earth made their famous investigation into the state of Indias bottled beverages and drinking water in 2002-2003, they found barely any
binding standards for what potable water means. The Union Ministry of Urban
Development had some years earlier refused even to discuss a proposed widening
of the definition of food to include drinking water under the Prevention of Food
Adulteration Act, 1954 because such a decision would impose a legal commitment and obligation on the agencies for adhering to the recognised standards for
potable water supplied by them.1149 And that would, the Ministry explained in a letter, become a financial burden on State Government undertakings and on local
bodies. The journalist commented upon the Ministrys attitude:
[T]his was an insuperable argument. Of simply not wanting to take on the task of
providing clean water; of simply avoiding it; of representing a scene of change for
the better as a pure financial nightmare. This is arrogant administration presenting
itself as soft governance. This is plain shirking.1150
Unfortunately, shirking is what most responsible authorities seem to apply themselves to. Blame not falling on budgetary restraints falls on any other agency or department. However, after the Gowramma decision, more clarity has been brought to
the fore: a duty as well as a power is vested in the Bangalore Water Board to arrange for a supply of water within its jurisdiction. Now we only await some clarity
1148
I do not include rainwater harvesting to recharge ones own well here because only by exception do poor people own and control wells.
1149
Letter from the Union Ministry of Urban Development, cited in Anonymous 2003.
1150
Anonymous 2003.
329
as to exactly how far this jurisdiction stretches. Karnatakas Legislative Assembly is

long overdue with a review of the entire Water Act. There is a dire need to bring
the Act up to date with other new and/or amended acts, and in step with the
physical expansion of the city. Bangalore will continue growing both horizontally
and vertically, and more effective demand-side strategies will have to be forcefully
implemented, coupled with remedies for non-performance.
The right to water needs to be realised for Bangaloreans living under conditions
of extreme poverty via increased cross-subsidisation, and continued use of public
standposts and taps where water is provided free. This right and the Boards obligations in this respect must be codified. The poor constitute a wide and diverse
group. Some have houses but no khata, many live in shelters or on the pavements.
The latter group is undoubtedly disadvantaged by an approach according to which
there is a willingness to pay for (improved) access to water, but only on paper.
Simultaneously, it must be recognised that numerous slum dwellers have the financial capacity as well as the factual willingness to get proper, metered, billed-for
connections to their homes. Their lack of khata needs to be dealt with by the Board
and the legislators, and this right must be formalised, transparent, applied equally,
reliable, and justiciable not remain an item of policy information on a web page
and a memory of the time when a Social Development Unit officer was in place.
Further, the Water Act must include provisions to integrate issues of groundwater management with various RWH measures. This means improving the holding
of records, the metered control of abstraction from wells (at least those with a motorised pump), and the regulation of all well owners in terms of compulsory rooftop RWH to recharge the local aquifers. Not only new buildings of a certain size
should come under this provision, as the prevalent Bye-laws stipulate, but RWH
structures should also become mandatory for most existing buildings. This, in turn,
must be integrated with the governments (Corporation) duty to maintain and rejuvenate tanks in the landscape for long-term storage, as wetlands and the like.
The current interpretation of the duty corresponding to the human right to water does not require the state as such to provide water, as long as it ensures access to it
to an affordable price. In other words, not all steps of supply and distribution
have to be run by a public utility such as a municipality. (The rural context of India
is fundamentally different and is not treated here.) Where urban dwellers rich and
poor alike yearn for drinking water and are not assisted by the public utilitys level
of service, private vendors will function to supplement the deficiencies. A certain
degree of private sector participation is probably inevitable in modern urban water
supply. As the various steps from locating the water source to distributing the purified water to users and treating the leftovers before the water is returned to the
environment increase in number and level of technicality, water supply becomes
increasingly complicated. Some devices and services such as electric pump sets
and automatic meter readers, digitalised purification processes and computerised
maintenance systems, various know-how and specialised expertise will certainly
be manufactured and provided by other actors than the public body responsible for
330
the supply. Few public utilities have all competences in-house, and must therefore
buy or outsource products, services and tasks, without this affecting the right to access. Long-term planning of water supply integrated with sanitation and other issues
of infrastructure, ownership, follow-up and control, and like responsibilities must,
however, remain in state hands, as the state can never escape ultimate accountability for ensuring that the right to water is fulfilled, corresponding with every groups
ability to pay.
You see the tankers in every part of the city and everyone knows the system
you call, they deliver. Several telephone numbers are painted on the vehicles, indicating a level of professionalism and service-mindedness. Two questions no-one
wants to ask, though, are whether this is lawful business, and what quality the water
has.
In the next chapter, we look into the legality of this form of supply against the
regulation of water as property. Under Indian law, is water susceptible of ordinary
ownership, and do landowners have an unlimited right to abstract their groundwater? The answers are of great practical importance to current and future strategies
for access to water.
331
Yelahanka
If they cannot pay, they cannot stay. They should move to the city and find
work.1151
Ignorant of the fact that most of the people he was talking about were employed
somewhere mainly as domestic workers in the case of the women, and as construction workers in the case of the men the highest representative of the (then) Yelahanka municipality expressed his view on the slum dwellers inability to pay for
new water connections. He was equally ignorant of the fact that one of the oldest
slum areas of Yelahanka was situated not far behind the municipality building in
which he was located behind a desk. Rightly, though, the minimum wages which
many of the poor people earn are far from sufficient to pay the connection fee that
the Water Board was asking.
The city referred to was Bangalore. Within two months, Yelahanka was made
part of it by an administrative decision which with a stroke of the pen made the
municipality part of one of the fastest-growing metropolises of India. But the slum
dwellers and their general situation continued to be neglected by those responsible for
the water supply. In November 2007, people from over 40 slums in the area went
to protest.
For the past three months there has been no water supply. People have to wait
for more than four hours to get water at Rs. 3 a pot said Sheela, the organising
secretary of Womens Voice, which led the protest. She termed it a violation of
human rights, and said that the burden was most of all borne by women as they
were the ones who had to walk long distances.1152
The coping arrangements of the poor are stigmatised by caste in parts of Yelahanka. The dalits inhabiting a long-established slum of the old town have access
only to the water that can be taken from a few taps and public standposts in and
near their settlement. When earlier the dalit women had tried to use a standpost in
the neighbouring area, the Brahmin women dictated the purposes for which that
water could be taken, and by whom. They also made it clear that the pukka water
delivered by tankers was not to be shared by the slum dwellers.1153
1151
Personal communication, Corporator, Yelahanka Municipality. November 29, 2006.

Anonymous 2007q.
1153
Personal communication with representatives from Yelahanka Old Slum November 29-30
and with Sri Jaitri, Yelahanka November 29, 2006.
1152
332
Chapter IX
Property rights and wrongs
1 The Indian law of property background

Kaveri and Indias other national rivers are within the purview of the states legislative control and their water is often talked about as being owned by the state. Likewise, though, according to a proverb, landlords are water lords in the sense that
they are assumed also to own the groundwater under the surface of their land.
Does this mean that the principle of res commune is not applicable? Answers specific
to the Indian context are suggested here.
Both prior to and after enactment of statutory law at the end of the nineteenth
century, Indian courts applied English common law to determine property-related
disputes. This law was not always appropriate or at all applicable to the social conditions of India, and the body of case law that developed became confused and
conflicting as a result. The colonial rulers eventually appointed a Law Commission
to rework English law into a mould that was more suitable. The Transfer of Property Act (hereafter: TPA) was passed in 1882, after several Bills had been redrafted
to better suit local law and usage.
The persistent influence of the English legacy and its Roman roots shows
from the fact that English doctrines remain of large importance, and statutory law
such as the TPA is still in force largely unchanged. India has not witnessed the legal
reforms that many other formerly colonial countries (most notably, South Africa),
have undergone in the recent past or for that matter the modernisation of the area
that took place in England beginning in 1925. Hence Indian lawyers (including stu-
333
dents, practitioners and judges) are referred to a mix of common-law textbooks and
court decisions with origin in old as well as more updated English and AngloAmerican, and sometimes Australian, legislation. The result is a vast body of law,
badly arranged and difficult to grasp compared to what a modern legal system offers. This is particularly problematic for the purpose of managing a scarce, vulnerable and fundamental resource such as water.
It should be noted that Indian law in the area has always deviated somewhat
from English before, during, and of course after colonial rule. Property and related concepts were not unknown in the area prior to the imposition and borrowing of philosophical and legal ideas from Europe. The Manusmitri, Islamic law and
applicable customary law all contain references to first possession, shares in property, rules on what can belong to whom, etc.1154 According to the ancient Hindu
conception, individual (male) subjects could acquire ownership in cultivable land
and the right of the state was confined to a share of the produce, in the form of
revenue.1155 Such ownership rights were generally acquired by cultivators entering
upon land, improving it, and making it productive, and a right to possession was
seen as acquired by the first person to make a beneficial use of the soil. 1156 Hence,
the English rule that the Crown was (and still is) the ultimate owner in land never
took hold in India, though the English rulers tried to invoke it. Cultivable land remained the object of ownership and not merely of tenure, as was (is) the case in
English law.
2 Regulation of water as property

2.1 Classification of immovable property
Imposing their property law, the English also introduced the classification of land
and other material objects as immovable property. For reasons like those given in
Chapter VII, a distinction is also made between land and other types of property in
Indian law. Agreements on transfer, conveyance, disposal, etc., of immovables are
hence surrounded by formalities (such acts as sale deeds, leases) and mortgages are
defined and regulated in the TPA. Likewise, the procedural rules on actionable
claims differ.
The Indian Penal Code, 1860, states that
[t]he words moveable property are intended to include corporeal property of
every description, except land and things attached to the earth or permanently fastened to anything, which is attached to the earth (Sec 22) (emphasis added).
1154
Subha Rao, pp. 17ff. Mulla, p. 1, maintained that [b]efore the Transfer of Property Act, there
was practically no law as to real property in India. This somewhat contradicts what Subha Rao
wrote.
1155
Subha Rao, p. 17, referring to the texts of the Manu Smriti. It appears that Mahomedan Law also
recognises the rights of subjects to have absolute property in land.
1156
Venkatanarasimha Naidu v. Kotayya, ILR 20 Mad. 299 at p. 301, quoted by Subha Rao, p. 21.
334
The TPA contains an interpretation clause with a negative definition. Hence, it

does not express what immovable property is, but states that
immovable property does not include standing timber, growing crops, or grass
(Sec 3) (emphasis added).
Equally imprecise is the definition in the General Clauses Act, 1897, which says
that
immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth,
[m]ovable property shall mean property of every description, except immovable
property (Sec 3) (emphasis added).1157
The Registration Act, 1908, contains a definition which is wider than but also
somewhat combines the two mentioned above:
immovable property includes land, buildings, hereditary allowances, rights to
ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the
earth, but not standing timber, growing crops nor grass; (Sec 2(6))
movable property includes standing timber, growing crops and grass, fruit upon
and juice in trees, and property of every other description, except immovable property (Sec 2 (9)) (emphasis added).
These three slightly different definitions of immovable and movable property are
not to be read as contradictory or inconsistent with each other, neither are any of
the Acts definitions exhaustive: they enumerate categories and items to be included
and excluded.1158 In a dispute, a court will have to make a decision on which Acts
apply, with a view to the context.1159
1157
Sec. 4 of the General Clauses Act stipulates that the definition applies to all (Central Acts,)
and Regulations made on or after the fourteenth day of January, 1887, hence also to the Property Act.
1158
Subha Rao, p. 53.
1159
As the three definitions above are found in acts promulgated by the English during the colonial time, it is interesting to compare them with the equivalence piece of legislation enacted in
England itself decades later: the Law of Property Act of 1925, applicable to England and Wales.
For this, the legislator chose a different technique, focusing on what the notion of land should
embrace for the purpose of the Act instead of taking immovable (and movable) property as the
point of departure. Hence, the English Act states that land includes land of any tenure, and
mines and minerals, whether or not held apart from the surface, buildings or parts of buildings
(whether the division is horizontal, vertical or made in any other way) and a rent and an easement, right, privilege, or benefit over, or derived from land, Sec 205 (1)(ix). There is no information as to whether any amendments were even discussed of the Indian law, being part of Englands jurisdiction at the time, to make its definition of land clearer.
335
2.2 Classification of water as property

The law on water as property is judging from the Indian textbooks in the field,
the few court cases, and statutory law mainly concerned with riparian rights and
interests (foremost easements). Statutory law leaves unanswered what class water
belongs to: is it real/ immovable property land in extended an meaning or a
mere chattel, a movable thing? As shown, the definitions found in the Penal Code,
the Transfer of Property Act, the General Clauses Act and the Registration Act are
brief and non-exhaustive in their formulations. None relates directly to water, and
interpreting any of them on the matter by way of analogy or contrariwise without
further support is fraught with insecurities.
The 1973 Code of Criminal Procedure defines criminalised disputes over land
or water or the boundaries thereof. The expression land or water thus includes
buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property (Sec 145). The provision comes under a heading saying
Disputes as to immovable property (emphasis added). Though the headings classification of water as immovable is not binding in itself, it indicates that water is perceived as real, immovable property.
According to G.C.V. Subha Rao, land in Indian property law means the surface
of the earth as well as subjacent things.1160 The autonomous Halsburys Laws of
India gives somewhat conflicting views in the volume defining Property and
Easements.1161 In the entry Meaning of real property it is held that the term is used
to denote land as well as things so attached to land as to become part of it.1162 Further down, the entry General meaning of land is similar to the definition in the
English edition, holding that land includes waters.1163 However, in a separate entry
in India we find Water and sludge (which has no correspondence in England), where it is set out that [w]ater is movable property (emphasis added).1164
Hence, we have two immediately opposite propositions as to how to classify water.
When looking closer at the latter entry, we find that it is supported by reference,
in a footnote, to a judgement of 1979 from the Allahabad High Court: Chief Controlling Revenue Authority v. Anti Biotic Project.1165 In this case, reference was in turn made
to cases from Indian, English, and American courts.1166 One of these is Mitchell v.
Warner (1825), in which the Connecticut Supreme Court (U.S.) stated that
1160
Subha Rao, p. 53.

Halsburys Laws of India, Vol. 12.
1162
Ibid, para 240.003.
1163
Ibid, para 240.014.
1164
Ibid, para 240.011.
1165
Chief Controlling Revenue Authority v. Anti Biotic Project, AIR 1979 All. 355.
1166
AIR 1976 SC 1813. One of the cases was Board Revenue v. A.M. Ansari. Here, an agreement
concerning a right to pluck, collect and take away forest produce was not considered as creating a
right or interest in immovable property but merely a right to cut the fructus naturales. The outcome of the case is not further commented on and the point taken from it in Chief Controlling
Revenue Authority is obscure.
1161
336
[w]ater is neither land nor tenement nor susceptible of absolute ownership. It is a

movable thing and must of necessity continue common by law of nature. It admits only of a transient usufructuary property and if it escapes for a moment, the
right to it is gone forever, the qualified owner having no legal power of reclamation. It is not capable of being sued for by the name of water nor by the calculation of its cubical or superficial measure, but the suit must be brought for the land
which lies at the bottom covered with water. As water is not land, neither is it a
tenement, because it is not of a permanent nature, nor the subject of absolute
property. It is not in any possible sense real estate [W]ater is a distinct thing from the
land (emphasis added).1167
The Court was here drawing on Coke and Blackstones words, 1168 and expressed the
confusion and disorder that comes from efforts to classify water as neither immovable nor movable property, but as res communes and a thing being qualified property
during possession.1169 That the Court expressly laid down that water is not real estate, and is a thing distinct from land, cannot therefore be interpreted e contrario so
that water as such was considered as a chattel. Hence the case does not support the
classification of water as movable property.
Another case that should be mentioned among those referred to is Alamsher v.
Ram Chand.1170 Here, the High Court laid down as an interpretation of the General
Clauses Act that
water, as long as it is flowing in the bed of a stream or river, is attached to the
earth, and is therefore immovable property, though it can be made into movable property by severance or removal from the earth (emphasis added).1171
The notion of severance of water from real property so as to make it become movable property was thus employed.1172 In Alamsher, the conditions were such that an
agreement on certain water rights prevailed and parts of the rights had been sold to
a third party. The Judge continued by holding that the subject matter of the lawsuit
in question
is not any particular water, but the right to the use of water. The right to such use is
certainly a benefit and it arises out of land, because the water of a perennial stream
comes out of land. Even if it came out of the clouds, I should be inclined to hold that
the benefit arises out of land, because the water must be first received by the land
before it can be beneficially diffused (sic, emphasis added).1173
1167
Mitchell v. Warner (1825), 5 Conn. 497, pp. 518f. N.b. that the reference given to Mitchell in the
Allahabad case report is wrong.
1168
[W]ater is a moveable, wandering thing, Bl Comm Book II, Ch 2, p. 18.
1169
Cf. Hilliard, p. 104.
1170
Alamsher v. Ram Chand 1898 Pun Re 11.
1171
Ibid.
1172
The U.S. Court in the Copeland case (referred to in Chapter VII) expressed it similarly 15 years
later, indicating that both courts took the formulation from some authoritative source that I have
not located.
1173
Ibid.
337
Surface water, and probably also groundwater, were in other words interpreted to
be land immovable property until separated from the land, after which it would
be classified as movable. As seen, this is typically taken from what Coke and Blackstone contended.
Interestingly enough, the Judge in the Chief Controlling Revenue case cut the sentence cited from Alamsher,1174 and then compared incorrectly with standing timber
to conclude that water is not immovable property.1175 Taken together, what was
held in Chief Controlling Revenue Authority v. Anti Biotic Project should be considered of
little precedential value and the statement in Halsburys Law of India that water is
movable property should not be given any attention.
Water in India surface as well as ground must therefore be classified as immovable property, just as in English common law. This would, in theory, affect
how water is conveyed, what procedural rules apply, and so on stricter rules apply
than if water had simply been seen as movable property. The effect of the distinction is partly lost on groundwater as it is differently seen altogether, but in a dispute
over severance and ownership, the classification matters.
Regarding rainwater, harvesting of which has been practised in India since prehistoric times1176 in percolation ponds which recharged the groundwater, in surface
water tanks, and nowadays often in rooftop structures, it could be asserted that water harvested and stored is (more or less permanently) attached to the land, and it
should therefore be seen as immovable property until severed from the tank by
pumping or the like, and deemed as captive.
2.3 Riparian rights and inter-State rivers

Indias seventeen inter-State rivers and river valleys, regulated under the Constitution (Art 246 and Entry 56 of the Seventh Schedule), are a responsibility of the
Centre government in so far as the Union parliament has legislated on the matter in
the public interest. As mentioned, the River Boards Act and the Inter-State Water
Disputes Act were both enacted in 1956. As for rivers and streams with no interState course, numerous Acts and Rules are in force in the respective States. These
regulate the subject of water: fishery, drainage, irrigation, channels and canals and
their maintenance, water rates and cess, command area development, and maintenance of tanks. Some of the Acts were issued by the colonial rulers and are still in
force,1177 others are of more recent date.
1174
Para 7 of AIR 1979 All. 355 is formulated as follows: In Alamsher v. Ram Chand (1898 Pun
Re 11) the Court held that Waterthough it can be made into movable by severance or
removal from the earth. Similarly, standing timber, which has to be cut down and removed is
movable property (sic). The positioning of the end quotation mark gives the impression that the
Judge in Alamsher stated something about timber. This is not correct; the quotation mark should
have been placed after earth.
1175
AIR 1979 All. 355, para 7.
1176
Cf. Agarwal & Narain.
1177
Cf. Raju, p. 174.
338
In water-rights discourse, it is sometimes held that the Indian Easements Act,

1882 (hereunder: the Act), lays down or codifies government rights over water,
rights previously belonging to and vested in individuals or communities. By the enactment of state legislation on irrigation, command areas and the like, powers and
jurisdiction have been taken away, according to this perception. Although it can
hardly be correct to maintain the general existence of equitable rights in water
vested with the people prior to colonial rule and the Act (cf. Mosse), it is worth
looking closer at property rights over rivers and streams as regulated accordingly.
The Act was adopted in 1882 as part of the English colonisers codification efforts. It was drafted by the Indian Law Commission, consisting of two British officers. It is heavily influence by the common law of the time and it has been held that
it was therefore perceived as just, equitable and almost free from the local peculiarities applicable around the country prior to the codification. As the rights with
which the Act dealt were thought to be practically unknown, not least in some rural
districts of India, the provisions originally extended only to specified towns.1178
The Easements Act contains an important savings clause, stating that
[n]othing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from
(a) any right of the Government to regulate the collection, retention and distribution of
the water of rivers and streams flowing in natural channels, and of natural lakes
and ponds (Sec 2(a)) (emphasis added).1179
I can only interpret this, especially the words any right, to mean that the Act recognises the right of the state to regulate these waters. This should not be understood in terms of ownership but that the water belongs to the public for beneficial use. This is hence a codification of the Roman principle that water in its natural
state etc. is incapable of ownership it is res communes, a common property resource. This can be seen against the contextual background of how the English
courts in the mid-nineteenth century struggled to make the law and substantiated
their reasoning with Coke and Blackstones doctrines.
The intention of the legislator was not necessarily in line with the landowning
elites perception of water being their private property right. These essentially contradictory views seem to persist today, creating tension and underlying a discourse
on state appropriation of the peoples rights.1180
However, the provision continues by providing for (any right of the Government to regulate)
1178
Publishers/Introduction to The Indian Easements Acts. A twofold objection raised against a
first draft was that by informing people of their certain rights, litigations would be provoked, and
it would furthermore have the effect of abolishing, or otherwise interfering with, easements recognised by local usage only, ibid.
1179
The word Government has been substituted for Crown as it was originally enacted in the
1880s.
1180
As will be mentioned in next chapter, the reforms to turn over the O&M to irrigation farmers
have been treated by innumerable scholars and lie outside the scope of the present work.
339
the water flowing, collected, retained or distributed in or by any channel or other

work constructed at the public expense for irrigation (Sec 2(a)) (emphasis added).
This amounts to original codification enacted centrally, to control water of government sources for irrigation of command areas. Control being vested with the
state, the English hereby usurped the right to manage, maintain and operate manmade canals and irrigation works in Indian villages.
Divan & Rosencranz describe this as a tussle for control over natural resources which were important economic subjects. The same question was again
made topical after Independence when the legislative authority over water was to
be divided between the Centre and the States in the new Constitution.1181 The role
of the law and the legal system is contested in this regard because in the opinion of
those concerned, what is right diverges from what the law stipulates, and the lawmaker had no or little legitimacy to impose the rules in question. We will consider
this issue from a slightly different angle in Chapter X.
We can compare this with what Justice R.P. Sethi expressed in relation to the
River Krishna in State of Karnataka v. State of Andhra Pradesh & Ors.: a belief in water
being a universal right:
Water is a unique gift of nature which has made the planet earth habitable. Life
can not be sustained without water International and inter-State disputes regarding the use of water are sought to be settled by recourse to the process of law
in place of the old doctrine or settlement by war or diplomacy. Water under all
prevalent systems of law has been declared to be the property of the public and dedicated to their use, subject to appropriation and limitations as may be prescribed
either under law or by settlement or by adjudication. The disputes relating to water management, its development and its distribution are to be considered not from rigid technical or legal angle but from the pre-eminently important humanitarian point of view as
water wealth admittedly forms a focal point and basis for the biological essence
and assistance of socio economic progress and well being of human folk of all the
countries (emphasis added).1182
These observations, added to the main judgment by Sethi, give recognition to several important principles and values. Water is public property, it can be regulated by
formal means, and it can be subject to law as well as settlement and court order. A
settlement refers here to decisions reached by an inter-State water disputes Tribunal but it seems as if it could also mean an agreement negotiated between parties,
thus an alternative dispute resolution. Nevertheless, a water-related dispute should,
according to the normative view the Judge expresses, not be considered from a
rigid technical or legal angle: more important is the humanitarian aspect and the
fact that water is a basis for biological life. The approach to law as an instrument
establishes that regulation of water needs to relate to the inherent high value in the
resource.
1181
1182

(2000) 9 SCC 572 = 2000 (3) SCALE 505 per Sathi, J.
340
3 Property in groundwater
3.1 A chattel?
Indian law on property in groundwater has not undergone any reforms since colonial times. English common law will hence continue to play a decisive role in determining what applies. Because Chhatrapati Singh is much cited despite having
written no more than half a page on groundwater, some space will here be devoted
to refuting what he held.
Singh maintained that [i]n short, groundwater is attached, like a chattel, to land
property (emphasis added).1183 As shown above, this is erroneous. Did Singh mean
that groundwater is something that is permanently attached to land like a fixture? It
should then still be classified as immovable property until severed from land. However, he wrote nothing that can be further interpreted in this regard. Rather, I
would hold that Singh wrote this based on a misconception to which we will return shortly of the legal definition of an easement. Since nothing else in his texts
supports the stance that groundwater is a chattel, I do not find it possible to consider it as anything but a misnomer.
According to Blackstone and American common law, groundwater nevertheless
becomes thing-like after being captured: a moveable subject to private ownership
which can be freely traded with like any other economic good. The question of exactly when the severance from land takes place, when the water is captured, finds
no answer in Indian law with less than a rule being laid down on this. We can compare with how the concept of fixtures seems to be equivalent to that of attached
in India.1184 The legal system contains both statutory provisions and precedents to a
similar effect.1185 Standing timber (that is fit for use in building and repair work) as
well as growing crops and grass (destined to become corn and fodder) are not at all
seen as immovable property in Indian law. Trees and shrubs that are rooted are
seen as attached to the earth and thus land, but they become movables after severance.1186 By analogy, this should apply also to groundwater.
More in line with the valid law, Singh also noted that [t]here is no limitation on
how much groundwater a particular land owner may draw. 1187 Though no reference is given, we recognise this from the cuius est maxim and the English rule ac1183
C. Singh 1991, p. 39, 1992, p. 18.

The word exists in the Concise Law Dictionary, p. 334, but cf. Subha Rao, pp. 57f on the differences between English law and Indian law.
1185
Cf. Subha Rao p. 58. From the decision in Thakur Paramanick Chunder v. Ram Dhone W.R. 288
(F.B.) it seems that, at least prior to 1927, there was nothing in the Indian laws or customs that
indicated the existence of an absolute rule concerning what is fixed.
1186
Sukry Kurdepa v. Goondakull (1872) 6 Mad. HC 71. According to Aiyars Concise Law Dictionary, the term severance signifies separation of something that is attached to real property. It is
typically used in regard to the cutting and removal of standing timber or crops from the land.
Severance is also mentioned in the TPA, Sec 37, regulating effects of division of real property
into several shares.
1187
Ibid.
1184
341
cording to which landowners have an unlimited right to abstract groundwater (first

pronounced in Acton). The consequence of such a legal framework, Singh continues,
is that only the land-owners can own groundwater in India. It leaves out all the landless, and tribals who may have group (community) rights over land but not private
ownership. It also implies that rich land-lords can be water-lords and indulge in
openly selling as much water as they wish (emphasis added).1188
If we begin by looking at the legal framework which Singh referred to, an interesting question is how did the rule laid down in Acton become part of Indian law?
We have to scrutinise another piece of legislation, namely the Indian Easements
Act, to find the answer.
3.2 An easement?
The following definition is given in the Indian Easements Act (the Act):
An easement is a right which the owner or occupier of certain land possesses, as
such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or
in respect of, certain land not his own (Sec 4) (emphasis added).
In an Explanation after this provision,1189 further definitions of the expressions

land, beneficial enjoyment, and to do something are given. A list of Illustrations
also follows, stating examples of what is and what is not to be seen as easement
rights. For instance, Illustration (b) describes that the owner of a house has (an
easementary) right to go on to his neighbours land and take water for the purposes
of his household; and in (f), it is said that the obligation to cleanse a water course
for the benefit of a lower riparian owner is not an easement.
As noted in Chapter VI, a valid easementary right is to be understood as a restriction on the full and exclusive rights that the servient landholder held before the
easementary right came into existence. The Act states that
[e]asements are restrictions of one or other of the following rights (namely):
(a) Exclusive right to enjoy. The exclusive right of every owner of immovable
property (subject to any law for the time being in force) to enjoy and dispose of the
same and all products thereof and accessions thereto.
(b) Rights to advantages arising from situation. The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without
disturbance by another the natural advantages arising from its situation (Sec 7)
(emphasis added).
One Illustration accompanying Sec 7 is highly relevant:
1188
Ibid.
In Indian bare acts, Illustrations and Explanations are a part of the provision under which
they are put.
1189
342
The right of every owner of land to collect and dispose within his own limits of all
water under the land which does not pass in a defined channel (g) (emphasis added).
In other words, a valid easement functions as an encumbrance on the servient

owners right to the groundwater beneath his land. But what is the right that Illustration
(g) refers to? Undoubtedly, it is the cuius est maxim and the rule laid down in Acton:
a landowner has an unlimited (absolute) right to the water under his or her land.
The words not in a defined channel in the Illustration add the rule on percolating
water from Chasemore. Two-thirds of India is hard-rock terrain, meaning that the
groundwater prevails in aquifers of weathered bedrock and jointed, interconnected
fissures. There is therefore essentially no such thing as groundwater in defined
channels.1190
Illustration (g) has been misconstrued by many scholars as laying down, per se,
an ownership to groundwater; although it is clearly a reference to an existing right
of usufruct (collect and dispose read together with enjoy in Sec (7)).
Rather, we should understand the wording against the background of the legislators in the Law Commission: English officers familiar with the common law of
their home country. With the reference quoted, they imposed certain parts of this
law on the Indian legal system and the result is a non-express codification of English common law. Though the landmark decisions laying down this common law
had been reached in a fundamentally different context that of a rapidly industrialising England, where exploitation of natural resources was a prerequisite for expanding production the result is that today Indian law supports an unlimited right
of every landowner to collect and dispose of all water under his or her land. The
right as such is not regulated in statutory law elsewhere than in the above Illustration, but references have been made in a few court cases, as shown below.
Chhatrapati Singh wrongly implied that groundwater is an easement, though an
easement is a (property) right that is created by a human act. His formulation was
however not explicit:
[I]f someone is interested in getting rights over the easement (over groundwater in
this case) he would have to be interested in land (emphasis added).1191
Singh here interpreted the TPA and the Land Acquisition Act of 1894, though neither contains the word water. The TPA stipulates that an easement cannot be
transferred apart from the dominant heritage (Sec 6(c)); the Land Acquisition Act
contains a definition in line with this (Sec 3(b)). In Singhs words, though, the TPA
necessitates that this right (to groundwater) can be given to anyone else only if the
dominant heritage (land) is transferred (emphasis added). 1192
1190
Even if groundwater was found to exist in a master joint, the exact extent and conditions of
the aquifer would most probably be too fraught with practical uncertainties for it to be considered a defined channel in the language of the law. Cf. the formulations in Dickinson v. The Grand
Junction Canal Company (1852) 7 Exch. 282 p. 300 = 155 E.R. 953 (Ex.), pp. 960f.
1191
C. Singh, 1991, p. 39, 1992, p. 18 (the same wordings in both).
1192
Ibid.
343
It remains unclear why Singh thus misread the TPA, and even more so why
others later have misconstrued his words this should be impossible for anyone
who can read the generic definition of easement in the Act or in an ordinary dictionary. The latter problem can partly be explained as Chinese whisper: few scholars or debaters have read either the Act or Singhs texts but take sentences from
some other writer without ever quoting the source. The misinterpretation thereby
lives its own life and has become incorporated as the truth about the legal situation
concerning groundwater.
3.3 Ownership? Unlimited right?

3.3.1 Pre-Constitutional rulings
Singh wrote that (only) landowners can own groundwater in India. As shown in the
previous chapter, the term own is not used in relation to water in Roman law or
common law. Was Singh then wrong also in this part, or is groundwater subject to
dominium in India?
With no applicable statutory law other than the Illustration to the Easements
Act already mentioned, we are referred to court decisions to find out whether there
is any law on the matter of ownership in groundwater. The result is meagre. Apart
from two decisions, analysed below and in the next sub-section, there are one or
two pre-constitutional decisions of the High Courts supporting [the] view that
there is an unfettered right to extract groundwater.1193
In Basavana Gowd v. Narayana Reddi, decided by the Madras High Court in
1931,1194 the English doctrine as laid down in Acton, Chasemore, Bradford, and other
cases was upheld in the sense that as between two landowners, neither was held to
have right of property in water percolating underground in undefined channels.
However, this doctrine was not considered of any assistance in determining the
case as the conditions were perceived to be so different from those in England.
First, the irrigation rights of ryotwaris1195 vis--vis the Government with regard to its
recognised sources of water are unknown to English law. Secondly, the water in a
river recognised as a source of irrigation is the property of the Government.
Thirdly, water percolating in a sandy riverbed in the dry months (October to July)
1193
Perumatty Grama Panchayat v. State of Kerala, 2004 (1) KLT 731 (High Court of Kerala, Single
Bench), para 13. The Judge referred to Kesava Bhatta v. Krishna AIR 1946 Madras 334 (which has
not been located for this study), summarising an observation made according to which the extraction of water running through unspecified courses beneath the ground was not an actionable
wrong, relying on English decisions from the nineetenth century, ibid. No court decisions referring to the doctrine from the time post Independence have been found.
1194
AIR 1931 Mad 284.
1195
A ryotwari (or raiyatwari) is a registered proprietor and cultivator of agricultural land from
which revenue was (is) collected on an individual basis. Introduced during colonial times, this was
part of a revenue system under which property rights were given to cultivators. The irrigation
rights put the government under an obligation to make water available to the ryotwari landholders,
possibly as a contractual right.
344
between the monsoons is also a phenomenon unknown in England. Judge Wallace

therefore stated that
the underground water to which the English cases apply is usually water between
layers of subterranean rock or clay so hidden that no one can guess what their
course is. In this country, it is fairly safe to say that the under-current of a river is
probably flowing down the river bed and that its course is defined in the sense that
one will probably be able to tap it somewhere in the river bed, and the water thus
is found in, and has not left, the recognized irrigation source, namely, the river
Judge Pandalai shared the doubts about the applicability of the English doctrine to
sandy riverbeds in Indias monsoon climate. What, then, was the status of the percolation principle, according to which no one, not even the owner of the soil under which it flows, has any property in such water till it actually reaches a defined
channel and therefore there is no infringement of any right of property by appropriating what belongs to no one in particular?1197 It was submitted that
the question is not capable of a general answer applicable to all conditions to be
found on the globe and that the doctrine of percolating water being publici juris
must be applied to Indian rivers with due regard to the reasons of the rule which
is ultimately one of convenience. As explained in the English cases if a man who
sank a well was to be held liable for the diminution of water in the wells of surrounding properties, to what distance is this liability to extend? There could be no
reasonable method of fixing liability of such results. The doctrine, useful because
convenient in such cases, becomes unmeaning where the result of drawing water
from one place in a water-bearing river bed, at another not distant place can be easily foretold from experience (emphasis added).1198
By using the expression publici juris meaning of public right Judge Pandalai effectively considered water to be a common property resource. This recalls how
Blackstone chose to distinguish between exclusive property in the sense of full
and private ownership (dominium), and qualified property which referred to a usufructuary right that lasts during possession. In other words, there would be no
ownership of (ground) water in Indian law.
In Basavana v. Narayana it was also held as a consequence of the English rule
that a landowner cannot go on to his neighbours land and pump water therefrom.
In other words, an oblique tubewell so placed that it reaches under a neighbours
land would (also) be trespassing.
The English doctrine has also been upheld in a couple of High Court cases in
which Sec 7 of the Easements Act was interpreted; Babaji Ramaling Sutar v. Appa
Vithavja Sutar,1199 and Karathigundi Kesava Bhatta v. Sunnanguli Krishna Bhatta.1200 In Ma1196
AIR 1931 Mad 284, pp. 288f.

Ibid, p. 297.
1198
Ibid, p. 298.
1199
AIR 1924 Bombay 154.
1200
AIR (33) 1946 Madras.
1197
345
homedans of Lonar v. Hindus of Lonar reference was instead made to Halsburys Laws
of England.1201 In the latter case it was also held that water percolating through the
soil is not a subject of property, for flowing water is publici juris.
In sum, the above do not amount to absolutely authoritative precedents but the
cases clearly substantiate the view that groundwater is not subject to ownership in
Indian law.
3.3.2 Contemporary High Court decisions
A more talked-about case regarding groundwater extraction is the current CocaCola case in Kerala (hereafter: the Plachimada case). In short, a Single Bench of
the High Court of Kerala decided the case late in 2003, but this was modified in the
same courts Division Bench in 2005.1202 The court case has, so far, come to concern the right of a landowner a company to draw large quantities of groundwater for its beverage manufacture, in relation to the rights of a village Panchayat to
withdraw a licence given to this landowner for (parts of) its operations. The case
thus concerns the general power of the Panchayat to protect and preserve the water
resources in its jurisdiction, and more specifically, to control the use and enjoyment
of groundwater in private property.1203
It was within the Panchayats power to grant permission for the use of electric
motors running the water pumps, according to the Kerala Panchayat Raj Act, 1994,
but did it have the power to cancel the same when it was up for renewal? This was
done with reference to the acute drinking-water scarcity, the depletion of the
groundwater table, and other severe environmental problems felt in the area
problems which were seen as directly caused by the companys activities. The Kerala Government, however, thought otherwise and ordered the Panchayat to renew
the licence.1204 The latter then filed a Writ Petition to enforce its right to cancel the
licence, for the benefit of the general public.
The decisions reached by the Kerala High Courts Single Bench (with a lone
Judge hearing and adjudging the case) and subsequently by a Division Bench (with
two Judges) must be understood against the procedural frames of traditional dispute resolution mechanisms. As described in Chapter IV on the PIL instrument,
private litigations are predetermined in terms of the role of the court, the pleadings
1201
AIR (32) 1945 Nagpur 106.

Perumatty Grama Panchayat v. State of Kerala 2004 (1) KLT 731 (single bench); Hindustan CocaCola Beverages (P) Ltd. v. Perumatty Grama Panchayat 2005 (2) KLT 554 (division bench). I have
earlier written about this case, in an unpublished conference paper that was cited by the Planning
Commission of India, 2007. The conclusions drawn then are partly different from those presented here.
1203
Cf. Koonan, p. 7, who adds that the highly relevant issue of pollution and its impact was neither produced before nor discussed by the Court. The Kerala State Pollution Control Board had
given permission to produce 561,000 litres of soft drink per day, each litre requiring 3.8 litres of
water, Bijoy, p. 4333.
1204
It was concluded as early as 2002 that the water was unfit for human consumption due to
hardness and salinity, Bijoy, p. 4334.
1202
346
and the rights invoked, the possible content of the directions, the remedies available, etc. These are technical aspects related to how the case is handled before, during, and after the court proceedings. The legal question to be answered, as formulated in the Single Benchs judgment, was therefore
whether the decision of the Panchayat to cancel the licence of the industrial unit
and order its closure on the ground of excessive extraction of groundwater is legal[,] and whether the interference made with that decision by the Government
is sustainable.1205
Whereas in the first decision, the Judge ruled that the companys extraction rate of
510 kilolitres of groundwater per day was breaking the natural water cycle and
not permissible,1206 it was held in the judgment by the Division Bench that any permissible restrictions, in the public interest, could only be to compel the company to
ensure that by its conduct it does not bring about a drought or any imbalance in the
water table.1207 And whereas it was held by the Single Bench that the Panchayat was
holding the groundwater resources in trust (applying the Public Trust doctrine as
upheld in Kamal Nath), this was later amended. According to the Division Bench
decision, the Panchayat had not been justified to cancel the licence and was directed
to reinstate it.
Although the questions at issue essentially concern access to and competition
over water, the right to water is hardly discussed by the Courts the Supreme Court
precedents on the (fundamental/human) right to water under Art 21 were not
mentioned in any of the judgments. Since the Plachimada case was not a PIL, the
Judges were unable to reason about and decide on matters not raised before them.
We can therefore conclude that counsel for the Panchayat must have omitted to invoke Art 21 to claim that the villagers right to drinking water was endangered by
the large groundwater extractions. The case came to revolve around the Panchayats
jurisdiction but without a discussion of what powers the applicable Panchayat Raj
Act confers for the purpose of local self-governance. This Act, promulgated to enforce Art 243G of the Constitution, regulates water in various provisions, but given
its not-very-specific provisions and its many gaps, it should have been subjected to
interpretation to determine how far the Panchayats rights and obligations reach.
The responsibilities clearly comprise the public drinking water supply to the
many landless adivasis (tribals) and dalits in the area, but how does this relate to the
private sphere of individual landowners, including the company? We still do not
know. And what about the companys right to abstract groundwater from under its
land? In the Single Bench judgment, it was held with a very general reference to the
English decisions of the l9th century that
1205
2004 (1) KLT 731, para 10. In legal terminology, the word sustainable means to be sustained as in upheld.
1206
2004 (1) KLT 731, para 13.
1207
2005 (2) KLT 554, para 49.
347
[t]he principles applied in those decisions cannot be applied now, in view of the sophisticated methods used for extraction like bore-wells, heavy duty pumps etc. Further,
those decisions and the above contentions are incompatible with the emerging environmental jurisprudence developed around Art.21 of the Constitution of India
The Judges reasoning in this part is erroneous. The doctrine of percolating water is
without doubt applicable in India and to the facts of the case, and should not have
been dismissed. It is also unclear what was meant by the reference to the environmental jurisprudence developed around Art 21. After an account of the Public
Trust doctrine and the Kamal Nath case (natural resources which are by nature
meant for public use and enjoyment cannot be converted into private ownership1209) and the fact that there is a right to life and to clean water under Art 21, the
Judge held that
even in the absence of any law governing groundwater, I am of the view that the
Panchayat and the State are bound to protect groundwater from excessive exploitation. In other words, the groundwater, under the land of the [company], does not belong to it. Normally, every land owner can draw a reasonable amount of water,
which is necessary for his domestic use and also to meet the agricultural requirements. It
is a customary right (emphasis added).1210
Against this, several arguments can be set. First, there is no absence of any law
governing groundwater: Acton and the other relevant English cases were made part
of Indian law during colonial times, as shown above. Secondly, the obligation to
protect groundwater (a natural resource) with application of the Public Trust doctrine should not have been confused with whether the water belongs to the company. These are entirely different questions of law and the Judge should therefore
not have deduced a conclusion (in other words) on the property rights from the
fact that the Panchayat and the state are bound to protect. Thirdly, if we go by
Basavana and by Sec 7, Illustration g of the Easements Act and the preconstitutional court decisions mentioned, referring in turn to the English doctrine,
water under the companys land does actually belong to it as a usufructuary property right, albeit not by ownership.
Fourthly, there is no Indian or other rule on normally or reasonable amount
the right to groundwater is unlimited, according to Acton. Fifthly, there is no requirement that the water must be drawn for domestic or agricultural use. Lastly, as
the right was laid down in cases such as Acton in England, and the Easements Act,
it is now regulated under positive law. Nothing suggests the existence of an Indian
customary right of the sort. Reasoning around natural rights in comparison to the
English doctrine would have been more accurate, but no such was provided by the
Judge.
The Division Bench later made an equally poor interpretation of the law:
1208
2004 (1) KLT 731, para 13.

M.C. Mehta v. Kamal Nath 1997 (1) AD SC 1 = (1997) 1 SCC 388, para 34.
1210
Ibid.
1209
348
We have to assume that a person has the right to extract water from his property,
unless it is prohibited by a statute (emphasis added).1211
We hold that ordinarily a person has right to draw water, in reasonable limits, without waiting for permission from the Panchayat and the Government. This alone
can be the rule, and the restriction, an exception (emphasis added).1212
It always will be permissible for an occupier to draw water out of his holding.
The permissible restrictions, in public interest, can only be to compel him to ensure
that by his conduct he does not bring about a drought or any imbalance in the water table (sic, emphasis added).1213
As can be seen, no reference whatsoever was made to the English cases or any applicable doctrines. The Judges merely gave support to the view that property in
land renders the owner a right to a reasonable amount of groundwater by referring
to the rule of law (unless prohibited by statute). This is altogether a weak justification of a right which, according to the Judges, was deduced from an assumption
(we have to assume).
Although the Plachimada case cannot be compared with Basavana, little confusion
as to the valid law seemed to have been felt when the latter was adjudged. The
same applies to cases in which (Sec 7, Illustration g to) the Easements Act was interpreted by various High Courts, as mentioned above: the English doctrine was
endorsed. It remains unclear why English common law was more or less ignored by
the Single Bench as well as the Division Bench in the present case.
In effect, the landowners absolute and unlimited right to abstract groundwater
was upheld, albeit on wrongful legal grounds. The fact that no statement on ownership was made in the current case should not be interpreted further, as the reasoning is altogether messy and ill-founded. Of larger interest are two doctrines that
must be thoroughly scrutinised for the benefit of the fundamental issues at stake.
3.3.3 A clash between doctrines?
The crux of the matter in the Plachimada case is the clash between the English doctrine and the fundamental human right to drinking water. The former was laid
down 150 years ago in a profoundly different context and has a rather weak legal
foundation in India, whereas the latter is posited in recent case law from the Supreme Court and can be seen as a positive as well as a natural right, inherent in
each person.
The ordinary (usufruct) right in groundwater applies also in India, we can assume as long as the groundwater is situated under the landowners soil and thus is
considered within possession. In hard bedrock, possession may be difficult to determine exactly as aquifers consist of series of interconnected joints, cracks and fissures which can be situated partly under several estates, indifferent to administra1211
2005 (2) KLT 554, para 35.

Ibid, para 43.
1213
Ibid, para 49.
1212
349
tive boundaries. How, then, is the question of who has possession of the water to
be answered?
In Acton and in Bradford, it was expressed that if a landowner intercepts or drains
off the water collected from underground springs in his neighbours well, this inconvenience is to be regarded as damnum absque (sine) injuria a loss without a legally
recognised injury and for which the legislator has therefore provided no cause of
action. The conduct is not wrongful in the eye of the law and there is no remedy to
be sought even for malicious drainage of aquifers under adjacent land. A landowner
pumping groundwater can simply not be held responsible for such consequences
according to this ancient maxim, as the damage is due to natural conditions.
The doctrine has been upheld in several Indian cases, and would seem to apply
in the Plachimada case too. Accordingly, the company would be entitled to drill
bore wells within the boundaries of its land and pump the groundwater even to the
detriment of villagers depending on public wells tapping the same aquifers as long as
there is no law to the contrary, circumscribing such conduct. The Panchayat is not
empowered to take on the role of legislator: the rule of law prohibits interference
from an authority lacking the mandate to regulate the matter.
However, whereas the damnum absque injuria doctrine may be sound in the ordinary case between adjoining owners of land, it may not be so when the injury is inflicted on a large group of people with no other source of water for drinking.
Rather, upholding the doctrine would be incompatible in its effect with the legally
protected interest of a right to life. The loss ought therefore to be deemed actionable, and the question would become one of establishing the cause and effect relationship between the companys conduct and the aggrieved villagers, represented
by the Panchayat.1214 I conclude that the damnum doctrine should not apply.
Another angle on the questions at issue is the Public Trust doctrine: the state
(should) act as a trustee for the benefit of the general public, to protect the natural
resources that are common property. The government is therefore required to act
to preserve and maintain certain resources for the reasonable use of the public. As
Sax has formulated it,
water is incapable of ordinary ownership, is held in stewardship by the state, is
the subject of a public trust.1215
The state, the rural representative of which is the Panchayat, must hence be duly
empowered to take its responsibility, or risk acting arbitrarily as in the present case.
Simultaneously, the state again represented by the Panchayat, this time already duly
empowered under the State Panchayat Act, the 73rd Amendment to the Constitution and so on is under an obligation to ensure each person his/her fundamental
right to drinking water.
Where groundwater is considered incapable of ownership, the Public Trust doctrine instead suggests that the property right lies with the public.1216
1214
1215
Such an investigation has been done but I refrain from commenting upon it here.
Sax 2004, p. 1, referring to the situation in American law as stemming from Roman law.
350
3.3.4 Awaiting authoritative adjudication

As the Panchayat refused to issue a new licence to the landowner, the High Court in
June 2005 once more ordered the wilful local authority to comply with its former
decision.1217 A conditional three-month operating licence was therefore granted
but with thirteen conditions, the first of which being that the company shall not
use groundwater for industrial purposes such as manufacturing of beverages. Simultaneously, the Kerala State Pollution Control Board ordered that the plant be
shut down.1218 In November the same year, the Water Resource Department of the
Kerala Government notified the areas groundwater resources as over-exploited,
requiring all industries to obtain additional clearance from the Government prior to
abstraction. With the groundwater still suffering from pollution, the inhabitants of
the area have lost their access to safe drinking water and rely on receiving it
through pipes for a few hours every other day, and through tankers.1219
Although the case has aroused enormous attention in India and elsewhere,
mainly due to the involvement of a multinational company once banned from the
country (1977), no all-binding precedent has yet been reached on the issue. The
Panchayat moved the Supreme Court in May 2005, and the Kerala Government did
the same that September. It promised a speedy trial, but the case now seems to
have met the same fate as most others awaiting trial in India: with a backlog of
over 30 million cases, it takes years for a case to be heard and resolved, as the
President of India said in a speech in February 2008.1220 It is a worrying sign, however, that the future of this politically sensitive but fundamentally important case is
obscured.
A moral angle on the issue of groundwater extraction is that of reasonableness.
The Supreme Court has earlier held that life, public health and ecology have priority over unemployment and loss of revenue.1221 This was reiterated in M.C. Mehta v.
Union of India & Ors. (2004), which concerned mining with effects on the water ta1216
Hildering, p. 97.
Hindustan Coca-Cola Beverages (P) Ltd. V. Perumatty Grama Panchayat June 1, 2005.
MANU/KE/0154/2005. The judges found that the Panchayat had been ill advised in the course
followed, and if further directions are not issued, it may tantamount to shrinking of responsibility, and we have to ensure that lawful orders are obeyed. A Panchayat is entitled to hold an opinion, but when the Courts have pronounced upon rights and liabilities, they have to gracefully accept the verdict. This is the rule of law, as we understand it. Ibid, para 15.
1218
Under the Environment (Protection) Act, the PCBs are to grant licences that are connected to
qualitative standards, and follow up on industrial establishments. The mandate includes to choke
the water and electricity supply, and even to close down factories, in case applicants dont comply
with effluent standards or conditions in the given licences. The Board referred to the companys
inability to explain the high cadmium levels in the discharged sludge. The closing order was also
motivated with that neither had the plant an adequate waste water treatment systems, nor had the
company provided drinking water to the villagers as directed. The company, just having resumed
production, held that the PCB acted ultra vires; beyond the power delegated to it.
1219
Suchitra & Venugopal.
1220
Anonymous 2008a.
1221
M.C. Mehta v. Union of India & Ors. (1987) 4 SCC 463.
1217
351
ble. The Court added that in talking about sustainable development, the required
standard now is that the risk of harm to the environment or to human health is to
be decided in public interest, according to a reasonable persons test. 1222 With reference also to the precautionary principle, it was held that [i]n times of such water
stress and desperation water mining is nothing less than a gross act of wastage of
a key resource.1223
No principle of reasonable use exists as to percolating waters in England Lord
Wensleydale attempted in Chasemore to develop his own doctrine on the matter, holding that according to reason and law it seems right to hold that a land owner ought
to exercise his right to use percolating waters in a reasonable manner with as little injury to his neighbours rights as may be (emphasis added).1224 He did not, however,
gain any support for this in England. As mentioned in Chapter VI, the reasonable
use rule is instead important in parts of American water law.
In the Single Bench hearing, the counsel for the company submitted that as a
good neighbour, the landowner may have a moral obligation not to make excessive
use of groundwater, so as to affect the persons in the neighbourhood.1225 Although
in this case it was merely a rhetorical way of formulating the responsibility resting
on the party causing the groundwater depletion etc., it is in line with the maxim in
international law, sic utere. The Division Bench later held that it was an essential
duty of the company to actively involve in the community especially in the
matter of health and drinking water supply.1226
The matters of principle in the case need to be dealt with by the Supreme Court.
The inter-connectedness of property in land, groundwater, the human right to
drinking water, hydrogeological and climate-related conditions needs to be brought
up and scrutinised with fresh eyes, according to the list of desiderata below. Even
better, though, would be a completely new petition, filed as a PIL in the Supreme
Court against any other landowner abstracting large quantities of groundwater. This
way, a clear and unambiguous precedent could be laid down. To make a wish de lege
ferenda (about the law as it ought to be), the Court would then take into account factors such as the following:
the level of insecurity relating to assessing water in aquifers when hard-rock
conditions prevail;
the rate of recharge under normal monsoon periods as well as intensified
precipitation and increased run-off as a result of climate changes;
the impact of drilling an ever-increasing number of bore-wells to great
depths within the same area and having powerful pumpsets installed;
the geographical location in the river basin and watershed;
1222
M.C. Mehta v. Union of India 2004 (12) SCC 118.

Ibid.
1224
7 H.L.C. pp. 380-9, per Lord Wensleydale.
1225
Perumatty Grama Panchayat v. State of Kerala, para 13.
1226
Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat, para 54.
1223
352
the Public Trust doctrine, as interpreted mainly by Sax;

the precautionary principle and the polluter pays principle, with the onus of
proof on the water abstractor/operator/developer;
the principle of sustainable development and equitable sharing;
(an Environment Impact Assessment, including public hearing, in the case of
abstraction/activity of and over a certain size);
the Californian principle of reasonableness;
the priority between drinking water needs, agriculture, and industrial purposes as laid down in the National Water Policy; and
Art 21 of the Indian Constitution read together with General Comment No.
15 and related documents.
This kind of approach would ensure a more holistic view of the rights and responsibilities involved in large-scale and prolonged groundwater extraction.
Although the Supreme Court cannot treat the pending case like a PIL in terms
of reasoning, we can paraphrase the introduction of one such judgment to see how
three Justices engaged formulated their verdict over a chemical plant in the Bichhri
case in 1996:
This writ petition filed by [the village Panchayat] brings to light the woes of people living in the vicinity of [beverage] industrial plants in India. It highlights the
disregard, nay, contempt for law and lawful authorities on the part of some
among the emerging breed of entrepreneurs, taking advantage, as they do, of the
countrys need for industrialization and export earnings. Pursuit of profit has absolutely drained them of any feeling for fellow human beings for that matter, for
anything else. And the law seems to have been helpless. Systemic defects? It is
such instances which have led many people in this country to believe that disregard of law pays and that the consequences of such disregard will never be visited
upon them particularly, if they are men with means. Strong words indeed but
nothing less would reflect the deep sense of hurt, the hearing of this case has instilled in us. The facts of the case will bear out these opening remarks.1227
The quotation speaks for itself, and could be cut and pasted into the final judgment
in the Plachimada case. However, and this should not be forgotten, most mediumto-large abstractions of groundwater in India are not done by multinational companies already subject to much glee, but by landowners who are or have been farmers,
for the purpose predominantly of agriculture. Among those are people pumping water from tubewells to sell to other farmers, but also for drinking water purposes.
Water users depend on access to groundwater, and they will need to depend on it
tomorrow as well. For this reason, a dispute such as the Plachimada case must be
decided soon to lay down predictable, transparent, and sound frames for groundwater use.
1227
Indian Council for Enviro-Legal Action v. Union of India 1996 AIR 1446 = 1996 SCC (3) 212 = JT
1996 (2) 196 = 1996 SCALE (2)44.
353
3.4 Regulation of and policy on groundwater resources

Is it correct that there is no limitation on how much water a landowner may draw,
as Chhatrapati Singh held? At present, this is in line with valid law except where
limitations have been introduced. Restrictions, although not very far-reaching, are
in force in different States. The federal Ministry of Water Resources has drafted
and circulated several versions of a groundwater Model Bill. Major ones came in
1970 and 1992, and the latter has been revised numerous times with the latest version issued in January 2005. The purpose of such a Bill is essentially to form a template for States in their own regulations of rainwater harvesting, notification of areas, requirements for application for permits prior to digging and drilling new wells,
registration of existing wells and of all existing water users, etc. The 2005 Bill suggests that quite far-reaching power would be vested with the State governments,
and that Groundwater Authorities are to be established in the States for handling
management and development questions.
The Planning Committees Expert Group suggested that the Model Bill be
strengthened in some respects. It relies on restricting the number of tubewells
through permits. As experience shows, such a control mechanism, to be administered by officers, slows down the regulation process. Further, even if the number
of tubewells is restricted, farmers can change the power of their pumps and draw
more water, which may lead to inequitable distribution. Finally, the suggested permit system bestows right to use groundwater on those who have already sunk a
well excluding others. It is thus inequitable.1228 In addition, more participation was
recommended.
Some States, mainly in the south of India (Maharashtra, Andhra Pradesh, Goa,
Kerala, Tamil Nadu, West Bengal, Bihar, Himachal Pradesh and Union Territories
of Lakshadweep, Chandigarh, Pondicherry and the jurisdiction of the Delhi Water
Board), have passed various kinds of groundwater legislation during the past few
years.1229 All of those States have chosen different formulations from that of the
Bill, and comparing them one can observe how some States have taken rather farreaching steps to provide for a holistic perspective notable is the Andhra Pradesh
Water, Land and Trees Act, 2002.
Karnatakas Groundwater (Regulation for Protection of Sources of Drinking
Water) Act, 1999 came into force in 2003. It is intended to regulate the exploitation of groundwater for the protection of public sources of drinking water and
matters connected therewith and incidental thereto. Drinking water includes water for domestic purposes and for livestock, but not for any type of irrigation. Permission is needed for sinking wells within 500 m of a public source of drinking
water, which means a well from which the Government or a local authority provides water to the public, and includes any other drinking water sources as may be
notified. The authority (the Deputy Commissioner) may declare an area to be a wa1228
1229
Planning Commission 2007, pp. 22f.

The acts in full text can be found via www.ielrc.org.
354
ter scarcity area for up to one year at a time and may, for the duration of the period
of water scarcity, prohibit extraction of water from wells within 500 m of the public
source.1230 A watershed can be declared over-exploited and new wells in such areas
need permission within the entire area. Extraction of groundwater from existing
wells may be prohibited in over-exploited watersheds during the period from 1
February to 31 July every year if these, according to the Department of Mines and
Geology, adversely affect public wells.1231 In the latter case, wells can even be closed
down, subject to payment of compensation.
The Act, if properly implemented, could serve to protect wells used for public
drinking-water purposes. It needs to be supplemented with a range of provisions to
protect groundwater resources as such, though, and to integrate the management of
groundwater with other resources in a more holistic perspective. A Karnataka
Groundwater (Regulation and Control of Development and Management) Bill was
passed in the State Cabinet in May 2007.1232 From the little information available via
the mass-media, it intends to make it mandatory for all existing buildings residential and commercial in urban and rural areas to equip with water harvesting technology,
make it mandatory for all owners of open wells and bore wells to register themselves,
and lay down that no person, household or firm will be allowed to use groundwater
without the permission of the Authority. Similarly, all people have to obtain permission from the Authority to dig a well or drill a bore well. A Groundwater Authority
is to be set up to control and regulate the exploitation of groundwater.
The above Bill seems to be articulated in line with what the Model Bill contains.
Some of the wording resembles that of the Kerala Groundwater (Control and
Regulation) Act, 2002, according to which all groundwater users must register a
poor formulation.1233 It remains to be seen when the Bill is decided in the Legislative Assembly and when it is published in the Gazette so as to come into force
and what it will contain. Judging from other States provisions, the emphasis will be
on permits and registration, but a strong RHW component can be expected in
Karnatakas version. Nonetheless, it is very unlikely that an upper limit or ceiling on
the amount pumped, or like conditions, is going to be introduced, or that a prior
impact assessment will be required, or that a generally strict attitude to the granting
of pumping rights will be expressed.
1230
This can be compared with the Government Order stipulating 250 m between a private irrigation well and a public drinking water source, as disputed in Venkatagiriyappa 1999 (4) Kar LJ 482.
1231
The authority must be satisfied that any existing well in area of over exploited watershed is adversely affecting the public source, on the advice of Department of Mines and Geology (Sec 8)
(emphasis added). Onus of proof lies with the Deputy Commissioner.
1232
A. Kumar; Prabhu. No further information has been found on the Bill.
1233
All users of groundwater in the State shall within one hundred and twenty days from the
date of constitution of the Authority, apply, to be registered with the Authority as a user of
groundwater in the State and for grant of certificate of registration (Sec 9). It has later been explained that this does not include consumers with or below 1.5 horsepower pumps on open wells
and with or below 3 horsepower pumps on borewells.
355
The drafted Act takes a wider grip than the existing Groundwater Act. High officials in the Department of Mines and Geology have not been enthusiastic,
though, knowing the various ways in which well owners tend to tamper with irrigation pump meters and refuse to adhere to binding regulations. 1234 As the watersheds
in the Bangalore area have been declared over-exploited, there is a general requirement for obtaining permission under Sec 7 of the existing Groundwater Act prior
to any sinking of wells. The Act does not appear to be well known, at least in the
urban environment, maybe because it comes under the Department of Rural Development and Panchayat Raj. It nevertheless seems to have been implemented to
prohibit wells drilled for hotels and other commercial purposes by the new international airport in Bangalore.
In Hohfelds terminology, we can explain the situation as implying that Karnataka State has the privilege of introducing legislation of this kind, correlating to a
duty for prospective well-drillers to apply for a permit. Whether the executive can
and wants to implement the imposed duty (i.e., prioritise enforcement) is another
question. Apart from the obvious problem of bribes and other kinds of corruption,
the issue is very sensitive. Enforcing the provisions of the existing Groundwater
Act, which empowers the authority to prohibit extraction of groundwater from existing wells during the dry season (Sec 8), would most probably involve high political costs.
The Central Ground Water Authority (CGWA), set up in 1996 under the Environment (Protection) Act (Sec 3(3)), has a certain responsibility for Indias
groundwater resources despite water being a State subject. The Authority has regional offices, such as the one in Bangalore with the States of Karnataka and Goa
within its jurisdiction.
The tasks of the CGWA include monitoring, control, management and development and it is mandated to issue necessary regulatory directions (Sec 5), such as
to notify areas that in terms of water extraction are critical, semi-critical, severely
critical, or over-exploited (formerly called grey or black). Withdrawal of
groundwater by industries or projects in some 1,600 such areas throughout the
whole of India is regulated by the Authority. Construction of new groundwater
structures such as tubewells in these areas is prohibited or needs special permission
(a No Objection Certificate, NOC). This can only be granted for drinking and domestic purposes.
In 2006, directions were issued to some States, including Karnataka, to adopt artificial recharge of groundwater and to promote rainwater harvesting to ensure
augmentation of depleting groundwater resources. The CGWA has empowered
administrative heads in the districts concerned to seal illegal tubewells, seize drilling
equipment, and disconnect electricity supply to illegal wells. Pursuant to the applicable provisions, Bangalore Urban District has been notified as over-exploited.
1234
Personal communication, Additional Director of the Department of Mines and Geology,

March 14, 2006.
356
Both Roman maxims and the English doctrine continue to influence Indias property law. The existing codification the Easements Act is not particularly clearly
worded. By comparing these formulations, references to publici juris and the English
court decisions in the few High Court cases with the original sources and their history, we can draw conclusions about the legislators intentions and about the ideas
that once influenced the Indian judiciary. However, the rules on property rights in
groundwater have not been put to the test since Basavana.
Considering the rapid industrialisation that India has gone through since Independence, this is surprising. Why have no relevant disputes reached the courts for
adjudication during modern time? Some reasons for this appear. First, it was shown
in this chapter that the misconceptions in the field are several, including the oftenreiterated beliefs that groundwater is a chattel and an easement. Without doubt,
this has influenced the understanding of property rights in water and the perceptions regarding possible reforms, for instance when the Planning Commissions
Expert Group reviewed groundwater and ownership in 2006-2007.1235
Secondly, the saying that a landlord is a water lord has a firm hold. As regards
groundwater, it corresponds with the main rule of valid, positive law. Accordingly,
there is an unlimited formal right to all the water that can be drawn from underground, though in some notified areas of some States the landowner will have to
apply for a permit before a new well is sunk, etc. It is not definitely known whether
there is any widespread awareness about the groundwater acts in force in the States
mentioned, or whether the provisions are even implemented by the executive. My
general impression from topic-related conferences, workshops, scientific articles,
mass-media and department officials in India is that there was knowledge of the
Model Bills existence, and that at least many academicians know that some States
have their own legislation. Landowners, though, are seemingly less aware about the
legislation applicable to them. From discussions, interviews and observations in the
Bangalore area, it seems clear that information is spread mainly by word of mouth,
within villages and families, between neighbours, via Panchayat leaders, and so on.
There may be vague and general knowledge that it is prohibited to sink wells or to
irrigate with groundwater but as long as no official person (or PhD student with a
camera1236) is around, wells are continuously being drilled both in the city and in
peri-urban and rural areas. Their purpose is mainly to provide drinking water, but
water is also drawn for construction.
Some minor social control is exercised in the absence of authorities: it was discovered that urban dwellers are keeping an eye on neighbours pumping and selling
their groundwater. The discontent expressed regarding this practice related to the
1235
Planning Commission 2007b; personal communication with Convenor of the Expert Group.
February 9, 2006.
1236
On some occasions, I was chased away by people connected to wells being drilled or from
which groundwater was sold. Without doubt, these people were aware that their business was
unwanted by social standards, maybe even by legal ones.
357
overdraft situation and the seriousness in falling water tables, both well-known
problems in Bangalore. Some irritation also had to do with the increased traffic
from large vehicles driving back and forth, and the noise from pumping motors
and engines. People knew which houses had tubewells and how often tankers came
to fill up from these, although they might not know exactly how much the seller
would charge. But no-one appeared willing to confront a landowner pumping large
amounts of the precious groundwater and making a profit from it. I interpret this
as a joint moral condemnation of those selling groundwater, lessened though by the
belief that the water in any case belonged to the seller. The social control did not
therefore transform to actual sanctions against those breaking the moral (possibly
also legal) rules. The punishment seemed mainly to take the form of gossip, too
mild a castigation to be effective as a deterrent.
The cuius est maxim and the English doctrine were imposed on the Indian legal
system in the late 1800s, without much discussion as to how suitable they would be
in a country with a different climate, with different bedrock, different history of
landownership and feudal patterns, etc. It became part of the central regulation of
land, established by the Crown with its hegemonic power over Indias natural resources. The English, who brought in the rules, had an obvious interest in conformity between Indian law and English law. Ever since, the legal picture has remained essentially intact, not questioned as such. The rights regime of landowners
and farmers is now seen as too politically sensitive to reform.
One exception is the Basavana case from the Madras High Court. In 1931, thus
during the raj, the (Indian) judges took an independent stand and concluded that it
was unreasonable to apply the English doctrine to certain conditions typical for India: experience showed that saturated sandy riverbeds tend to carry water during
the many months between the monsoons. There was hence little or no insecurity in
predicting the flow of sub-surface water despite its invisible character. Therefore
the Court had no reason to uphold the doctrine on percolating groundwater. Instead, the main rule applied: riparian rights to water running in a defined channel.
Had the case been adjudged by the Supreme Court and thereby been binding on
all Indian courts, some aspects of the law would stand clear, at least in regard to
water in the saturated zone of a river during the dry season. Appropriation of this
water through pumping would amount to trespassing on the landowners (riparian)
rights an actionable infringement.
It can safely be said that under ordinary circumstances, though, percolating
groundwater in undefined and unknown channels is not subject to private
ownership in India but almost certainly to property rights in the form of usufruct.
There is thus a right to use and enjoy it.
California rejected the English rule, seeing that it was not suitable for determining disputes under Californian conditions. On the phenomenon of import from
foreign law, Hodgson notes that
[h]istorically, much of the focus of water law, and thus conceptions of water
rights, has been based on rights to abstract and use water from streams and rivers,
358
more specifically from the abundant and perennial streams and rivers of Europe.
This has had, and indeed continues to have, implications for the export of
European notions of water rights to countries with vastly different climatic and hydrological conditions (emphasis added).1237
The English rule was made part of Indian law by way of colonial imposition, and it
is obvious that Sec 7, Illustration g of the Easements Act was adopted but not
adapted to the different and varying conditions of the Indian sub-continent. It is
time to overhaul it somewhat and replace it with a flexible rule better attuned to
contemporary needs. This cannot be achieved through judicial creativity in the
courtroom; a legislative reform is imperative. A 150-year-old principle of English
common law, now tacitly upheld, needs to be buried just as it has been in its country of origin and in other common-law jurisdictions.
However, the Easements Act is not to be amended in the foreseeable future.
The Planning Commission expressed its unwillingness in this regard when commissioning an Expert Group to review groundwater and ownership.1238
By comparison with the U.S.A., where doctrines on riparian rights, prior appropriation, public trust, etc. apply, strict statutory law confine the landowners rights
to pump and abstract water. Authorisation is required from the state in the form of
a permit. Existing rights are curbed when the situation so demands. Joseph Saxs
conclusions on the legality of water rights are that they
have less protection [against state regulation] than most other property rights for
several reasons: (a) because their existence may intrude on a public common,
they are subject to several original public prior claims, such as the navigational servitude and the public trust, and to laws protecting commons, such as water pollution
laws; (b) their original definition, limited to beneficial and non-wasteful uses, imposes
limits beyond those that constrain most property rights; (c) insofar as water rights
(unlike most other property rights) are granted by permit, they are subject to constraints articulated in the permits (emphasis added).1239
In other words, the fact that property rights exist in law cannot constrain a highly
pertinent need for change, and we must move towards a fundamentally different
water strategy. The balancing of reasons for having safe rights in property must favour resource preservation, long-term allocation and the general interest of the
public. Lines of argument similar to Saxs are of interest also to contexts such as
the Indian. From the legal perspective, property enjoys far-reaching protection
against takings (expropriation) by the state, save for the possibility of reasonable
compensation. The right to property (including peaceful enjoyment of ones possessions) is protected as a human right in numerous constitutions. The right, however, is usually a qualified right: under certain circumstances it is lawful for the state
to interfere with a persons property.1240
1237
Hodgson p. 14.
Personal communication with Convenor of the Expert Group, February 9, 2006.
1239
Sax 1990, p. 260.
1240
Cf., for instance, Art 1, Protocol 1 of the European Convention of Human Rights. According to the
1238
359
At the same time, some of the existing rules on water are not being upheld. As a
consequence of water being perceived as publici juris and res commune property of
the public a government cannot sell the ownership of water or sublet parts of a
river to a private party. This would require that the right of ownership were vested
in the government, or permission from the property holder. Even in the case of legitimate representation by the public, the authority to transfer control over national
waters to private interests can be debated.1241 Yet this happens regularly in India
both stretches of rivers and groundwater resources are practically sold by governments without proper prior assessment of the consequences.
Since the end of 2003, the Kerala Groundwater (Control and Regulation) Act,
2002 has been in force. In notified areas, a permit is required for sinking new wells
and for converting existing ones into pumping wells. The Plachimada case nonetheless has its equivalents, albeit not yet in the courtroom. Many similar situations
have been reported, not only from India, and they represent grave tensions between poor, landless people and often also subsistence farmers on the one hand
and factories and groundwater-pumping landowners on the other. In the case of a
beverage bottling plant located in an area with (irregular) scarcity, it will without
doubt seem like mockery of the poor that the little water available is being pumped
and transported far away while very little of the benefit but most of the environmental and humanitarian damage remains in the locale indefinitely.
This leads us to the third dimension, water rights, in India and Bangalore. As
shown in Chapter VII, the concept can in itself be understood differently. Of large
importance in relation to the Bangaloreans human right to water is how the Kaveri
dispute can be regulated: what water rights apply today and what is the scope for
reallocation of the share in the rivers water.
American Constitution, compensation is due on two grounds: where there is a physical invasion,
i.e., when the government appropriates to itself some part of an owners property, and where the
effect of the regulation, though its purpose is valid, so greatly diminishes the value of the property that it is no longer economically viable, Sax 1990, pp. 262f.
1241
Cf. Hildering, p. 97.
360
Chapter X
Water rights matter
1 Mounting pressure and competition

1.1 Properties lost, priorities lost
Drinking water gets precedence over irrigation. However, at times looking at the
wasteful use of water by people in urban centres like Jaipur one gets the feeling
that they do not deserve it at all.1242
The words come from Rajendra Singh who has successfully mobilised village communities in the State of Rajasthan (situated in the Thar Desert) to rejuvenate tanks
by rainwater harvesting. The statement mirrors some of the tension prevalent between the need for drinking water in the city and the need for irrigation in the noncity environments food and fibre production. This sometimes fierce competition is
the reality in many more instances than those of Jaipur and Bangalore: much of the
water utilised in Indian towns and cities is transferred from the rural hinterland
from sources such as the Kaveri River, from wells owned by the municipality or the
public supplier and from wells owned privately.
Rajendra Singh continues by referring to both water rights and natural law:
The natural law says that those who live in the vicinity of the source of water are
its rightful claimants It is time that the policy makers decide on the yet unsettled
1242
Anonymous 2005. Jaipur is the capital of the State of Rajasthan.
361
aspects of water rights like whose water, priority areas for its use, the quantum for irrigation and similar factors (emphasis added).1243
This statement shows a perception of natural law as giving claim-rights to all those
living by a body of (surface) water. The perception deviates from the legal understanding of a riparian right, but it seems widespread among farmers, scholars and
debaters in India. The misconception or parallel conception of the pertaining
water rights is one reason for the discrepancy between the state authorities, presumably applying formal law, and the subjects of the same law.
Is Singh then correct in requesting that matters of whose water?, priorities, etc.,
be settled, or can they be considered sufficiently regulated? In terms of priorities, the
National Water Policy is clear; but it is neither detailed nor binding and is therefore
not suited to more complex situations of rights over water. The Policy is also silent
on the wasteful use of water by people in urban centres and like situations concerning competition. As shown above, the Supreme Court has reached a few decisions on priorities between uses. It has lucidly laid down that water for drinking is
prioritised as a right. The Courts perception of the human right to water can be
seen as reflecting everyones natural right to survival and well-being. Although
statutory law is missing, it is thus clear that the question of priorities has been given
an answer.
The question of whose water is important for landowners in two situations.
First, in relation to the landowners who pump and sell their groundwater or who
make an agreement with someone else who abstracts the water for a settled price.
This practice fills a demand in the industrial sector, in agriculture, and for domestic
purposes in the cities. Many scholars and policy-makers discuss this aspect as part
of the water-rights discourse, and we saw in the previous chapter how property law
provides for an unlimited right to abstract groundwater, save for restrictions
permit requirements recently laid down in law.
There is at the same time a perception among other landowners, but maybe
most of all among landless villagers, that excessive pumping from the aquifers is
morally wrong and ecologically/hydrologically unsustainable. S. Janakarajan et al. tell
of how the Water Board of Chennai, severely water-stressed, has pumped and purchased water from peri-urban areas with rich aquifers (well-fields) since 1965. This
has damaged local agriculture and thereby threatened livelihood opportunities, aquifers have become saline due to seawater intrusion, and droughts occur. Over the
years, the conflicts between villagers in the area, the Chennai Water Board and the
city have intensified.1244 Legislation is in place to protect groundwater and secure
drinking water supply, legislation that serves the Chennai Water Board but also local domestic water purposes at the expense of agriculture.1245 Apart from the public
Water Board, numerous private operators in these peri-urban areas pump the aqui1243
Ibid.
Janakarajan et al., pp. 54f.
1245
Chennai Metropolitan Water Supply and Sewerage Act, 1978; Chennai Metropolitan Area
Groundwater (Regulation) Act, 1987.
1244
362
fers for the bottled-water market and for transport of bulk water with tankers to
the city and elsewhere.1246 Though the authorities thus take measures to control the
drinking water situation as the National Water Policy and several Supreme Court
cases prescribe, demand is always greater than supply.
Secondly, the question of whose water is relevant in disputes over water in the
rural setting, where (predominantly) farmers are perceived to have a claim against
the Government. This aspect is thus interlinked with that of the quantum for irrigation, as regulated State-wise in Water Cess Acts, Irrigation Acts and the like. For
most man-made canal systems for irrigation from surface-water sources, Rules of
Regulation have been issued. These pertain to such things as allocation of water to
the head-reach in relation to the tail-end of the canal system, authorisation of paddy
cultivation during specific seasons, and the type and number of crops the farmer is
entitled to grow in a year. Government Orders are time and again issued with the
effect of closing canals and sluices for the benefit of water flow in the tank system.1247
Many farmers are averse to these rules. They are generally seen as imposed illegitimately from above by the state, by the English rulers before it, both with little
or no insight into local contexts.1248 The rigidity of the bureaucracy, seeking to control each villages irrigation pattern, is obvious. K.V. Raju describes how
[i]n the operation of these rules, managers have to reckon with, and adjust, allocations in the light of variations in rainfall and water availability in the system between and within seasons, and from year to year. Most systems, therefore, give
considerable discretion to their managers to decide allocations and scheduling on
the basis of actual rainfall This flexibility does not, however, always work in a
manner consistent with the authorized entitlements and their underlying rationale.1249
Again, we find a clash between a description of how water management and allocation decisions are carried out in reality on the one hand, and authorized entitlements and their underlying rationale on the other. Several Indian States have now
enacted legislation on Water Users Associations involving those farmers who use
water from a so-called Government source, and thereby turn over the regulatory
situation under which major, medium, and minor irrigation systems are controlled
by the States Public Works Departments, Departments of Agriculture, Irrigation
Departments and Command Area Development Authorities, as well as the Collec1246
Janakarajan et al., pp. 55ff. These actors ought to apply for permissions prior to their groundwater pumping, but it is unclear whether they have even handed in applications or operate illegally.
1247
For instance, the Government Order No. FEE 215 ENV 2000, creating a Conservation Zone
covering the entire T.G. Halli reservoir catchment for the benefit of the Water Boards drinking
water distribution.
1248
Much of the irrigation systems where planned out as parts of a larger whole, put under the
management of a central District Collector. The decisions on allocation of water have traditionally been in this officers hands.
1249
Raju, pp. 177f.
363
tors appointed for each District.1250 The aim is to create more flexibility by transferring some responsibilities so that the farmers can balance the water needs between
themselves.
1.2 Water Users Associations

The legislative Acts in force for the purpose of Water Users Associations are
mainly targeted to landowners, but they stipulate representation also of farmers
who do not own land and sometimes also of other interests than the surface-water
irrigators, such as the washermen community and dalits who may depend on the
right to fish in tanks. In some Acts, the definition of user thus also includes others
than those irrigating their fields from Government tanks, canals, distributories, and
other works constructed under the command area schemes.
The tasks that the Water Users Associations are charged with relate to planning, O&M of tanks, canals, reservoirs, sluices, and the like. The associations are
also authorised to regulate the use of water according to an agreed rotation schedule, to regulate disputes, monitor water flows, and so on. This authorisation to take
certain kinds of decision supposedly after negotiation among those concerned
essentially amounts to the WUAs water right.
Upadhyay has criticised the enabling laws enacted on WUAs in seven States on
the grounds of the (lack of) rights endowed by the state.1251 Only two States have
included any formulations relating to WUAs rights.1252 These two have, for instance, prescribed a right to receive water in bulk from the Irrigation Department
for distribution among the water users on agreed terms of equity and social justice,
and also a right to receive the water according to an approved time schedule.
Upadhyay notes that these Rules do not lay down the remedies should the right to
receive water in bulk from the Irrigation Department not be honoured. Another
right laid down is to have full freedom to grow any crop other than those expressly
prohibited by law, and to adjust crop areas within the total for which water is allocated without causing injury to neighbouring lands.1253
There is also an enumeration of rights such as the right to participate in the
planning and designing of irrigation systems (Upadhyay writes that these are not
1250
India is claimed to have the largest irrigation infrastructure in the world, consisting of dams,
reservoirs, and man-made canals. Some of them are donor-driven. Publicly funded O&M is too
costly to uphold and many structures are therefore in a state of decay another reason for turning them over to the farmers themselves. There is a very rich source of research and literature on
the subject of the WUAs and World Banks Participatory Irrigation Management reform programme.
1251
Upadhyay 2006.
1252
Apart from Upadhyays list, there is the Maharashtra Water Resources Regulatory Authority
Act, 2005, which provides for entitlements, meaning any authorisation by any River Basin
Agency to use the water for the purposes of this Act (Sec 2(1(a))).
1253
Upadhyay 2006, p. 5; the Andhra Pradesh Farmers Management of Irrigation Systems Rules,
2003 and the Chhattisgarh Sinchai Prabandhan Me Krishkon Ki Bhagidari Niyam, 2006.
364
rights in the strict sense of the term).1254 Lastly, there are individual rights in the
Acts mentioned, including rights to receive water as per specified quota for use,
and the right to sell or transfer ones water share to any other water user within the
operational area of the water users association, with the associations permission
and without affecting the rights of the other members.1255 David Mosse notes, based
on longitudinal anthropological field studies as well as detailed archival investigations, that the governments rights to water are unchallenged, while their obligations to deliver water to WUAs are rarely legally binding the state may in fact
have lost very little of its control of irrigation resources.1256
An increasing number of farmers irrigate their fields with groundwater from
their own lands, and up to three-quarters of all farmers still practise rainfed farming, thus without irrigation. Hence these farmers do not come under the WUAs.
Similar to the WUAs, but not regulated under law,1257 other organisations engage
in planning, administering and managing schemes for rejuvenating percolation
tanks and distributing (rain)water such as the Pani Panchayats (pani is Hindi for water). One successful case is (was) that initiated by Vilasrao Salunkhe in Pune,1258
where water was treated as a common property resource. All villagers, including
women and the landless, were afforded equal rights and access to the water, although it was chiefly allocated for irrigation purposes. The rights were not tied to
land ownership, meaning that if land was sold, the water rights reverted to the
farmers collective. All beneficiaries of the Pani Panchayat had to bear 20 percent of
the cost of the scheme. The right to water was allocated on the basis of number of
family members, rather than in proportion to the land holding.1259
The key components of the above example are that communal, collective and
equitable rights were created instead of individual a major contrast to how the
Water Users Associations are arranged together with efforts to build consensus.
Clear rules were set up internally, rules that can be compared to social norms applying among those concerned in the local setting.
Both in this scheme and in the WUAs, priorities are set for the purpose of irrigation. However, the rights granted, the decision-making powers and the ambitions are fairly limited. What can be achieved is a (feeling of) greater influence and
participation among irrigators who depend on the same source of surface water.
1254
Ibid, p. 6.
Ibid, p. 7.
1256
Mosse, pp. 267f.
1257
The Pani Panchayats regulated under the Orissa Act, 2002, are WUAs.
1258
Vilasrao Salunkhe died in 2002 and it is uncertain whether the mentioned Pani Panchayat has
continued after this.
1259
Rai.
1255
365
2 Legal rights, practices, social norms

2.1 Water rights de facto and legal pluralism
The understanding of local water rights in the Indian context is usually related to
user rights in traditional water harvesting (irrigation) systems, rather than to permits
granted by a state authority or the doctrine of riparian rights. Numerous studies
have been conducted on local management of tanks and man-made channels,
sluices, etc., and how villagers deal with O&M and monitoring and regulate how
the water is to be allocated and shared.1260 Rules exist to some degree, and disputes
are mostly settled in informal ways, i.e. without litigation. The water rights talked
about among scholars may be orally transmitted rather than written and recorded,
and where strong informal norms apply, the formal statutory law may not be followed. It seems that these rights have in some cases been earned by the rightholder investing time and labour. Participation is often described as open to everyone in the village, and the (surface) water is described as a common pool resource.
Larger variances prevail, though, depending on geography, climate and ecology, socioeconomic and cultural factors related to land ownership, historical path and so
on. Yet some common features emerge.
Mosse has explained in historical-political terms how the rule of water is linked
with its social role in the series that make up the systems of rural tanks. One point
of departure for understanding these links is fundamental:
The impounding of water in reservoirs creates a shared resource requiring cooperation within and between villages. As a common pool resource whose joint
use is subtractive, irrigation water requires social arrangements for distribution and rationing in times of shortage, as well as for higher-order regulation of water rights and
dispute arbitration. Irrigation systems also require continuous investment (of time
and money) in maintenance and repair While the decentralized nature of the
network of channels and lakes allows an autonomy for village-level operation,
wider hydrological and system maintenance interdependencies require integration
at higher political levels (emphasis added).1261
An interdependent hydrological system of tanks requires some integration also in

terms of regulation and the genesis of rights at local level. Many studies cover water
rights at village level prior to and during colonial times. According to the most influential discourse, water rights were established and applicable among people until
the English colonisers and thereafter the Indian state usurped the rights of individuals and communities and replaced them by its own management policies.1262
Mosse has deconstructed this discourse into pieces of idealised narrative, dichotomies and antipathy between community and state, and observed that though holding much truth, there is also much that needs to be qualified or challenged. This
1260
The number of scholars is vast and I refrain from giving names here.
Mosse, p. 4.
1262
Agarwal et al., p. 401.
1261
366
is, not least, because traditional village water management systems prove extremely elusive.1263 Further, the traditional systems are seldom described in sufficient detail by the researchers to allow conclusions about the water rights applicable.
There are also reasons to doubt these traditional systems in respect of inclusion/exclusion. Anil Agarwal et al. write that [t]he most striking feature of traditional water harvesting systems is that the people had the right to construct and
manage them The community, in many cases, ensured equal access to water to all
its members, on a needs basis (emphasis added).1264 However, nothing suggests
that the poor, lower-caste, and women in the villages were, or have later on been,
granted rights in the water-management structures described. For instance, the water-rights system in the Spiti area of Himachal Pradesh is often referred to as an example of a traditional, well-functioning system. Accounts of it nevertheless indicate
that the rights are held exclusively by members of the bada ghars group and are inherited by the eldest sons only.1265 Clearly, these rights are not to be characterised as
community rights, but belong to certain families in a stringent social hierarchy.
Even at present, social control of access to tank water does not mean that
these systems are sustained by a community moral ethic.1266 Rather, the social control exercised serves private interests and unequal relations of dominance. Water
use rules cannot be viewed as simple expressions of community morality or for
that matter as a consensual equilibrium outcome of self-interested individual actors Water use rules invariably express the interests of the authority which backs
them, Mosse writes.1267 The rank of locally dominant kin or caste groups cannot be
thought away from the Indian context.
From experience in his study areas Mosse also undermines the whole idea of the
irrigation systems being governed by a set of allocation rules. He mentions plenty
of instances of rule infringement by night, neglect of obligations, men of influence
deviating from publicly expressed codes and norms without any sanctions, knowledge of powerful rule-breakers, second-order strategies to regularise action which
does not conform to rules, calculative, self-interested behaviour, even cheating, etc.
Officially, rules are always followed: those with the necessary skills, power or authority manage to break them and yet demonstrate conformity and thereby win
over group support for private causes compliance may thus even be self-fulfilling.
Typically, socially weaker groups and women lack the capacity for manipulation of
community rules, though.1268
It is a rather complex and bleak picture that is painted, where not only formal
rights and obligations are subject to non-adherence, but even local rules are not
1263
Mosse, p. 11.
Agarwal et al. in Agarwal & Narain, p. 401.
1265
DSouza, p 34.
1266
Mosse, p. 160.
1267
Mosse, pp. 160f.
1268
Ibid, pp. 161ff, 200f.
1264
367
considered binding. The gain of non-compliance is simply considered higher for

individuals who manage to take a larger chunk from the common property resource a classical case of free-riding. Mosses picture challenges the simplified explanations of there being a multiple order of water rights, of legal pluralism prevailing, and of local de facto water rights being applied rather than the formal de jure
rights of the state.
The development and issuing of local water rights risks suffering from prevailing power-inequalities, and thus lacking wide legitimacy. Some studies indicate that
rather than being a factor of rights in land and in (ground) water, it is the means of
production that determines whether someone has access to water.1269 Overall, this
indicates that instead of de facto rights there are de facto no-rights to access water in
some cases, for some groups of people.
It was shown in Chapter VII how in one discourse water rights are claimed to
exist de facto, parallelly with de jure rights. This discourse does not play the same role
in India, maybe because canal irrigation systems are so closely regulated. The few
authors using the term for the Indian context invariably link the discussion of water
rights with property rights and ownership issues. For instance, it has been said that
[c]reation of tradable rights over water for establishing a water market requires
reformation or modification in the existing property rights structure in water.
Here the distinction between de jure and de facto property rights becomes important. De
jure rights are usually granted by the state and are enforced through its agencies
like government. Private property serves the best example of such de jure rights.
However, in many cases of common pool resources, the users enforce property rights
over the resource and develop what is termed as de facto property rights (emphasis added).1270
This statement can be read as relating to how farmers sidestep the official irrigation
regime to set up their own allocation rules. These are results of negotiations and/or
are based on established local practice. The agreements, termed as de facto property rights, will apply within the group in relation to the common pool resource
surface water in this case for an agreed time. However, the fact that these de facto
rights (and obligations) are enforced among users does not necessarily mean that
they are applied equally among the right-holders. Hegemonic relationships can exist
due to caste and community membership as well as on geographical location in the
landscape.
Legally valid de jure rights are not necessarily established by the state, as long as
certain criteria are met. Next, we will look more closely at customary law in the Indian system.
1269
1270
Cf. Prakash & Ballabhs study of groundwater rights.

Jyotishi & Rout, p. 149.
368
2.2 Customary law in the Indian interpretation

In relation to talk of local water rights, the difference between legally valid customary law and local/social customary practices should also be mentioned. In Chapter
VII a distinction was made between the formal customary law and legal customs,
and what can be called customary practices, local customs or the like. The former
are described by S.R. Myneni: In the early days customs were accepted as lawconstitutive because, in the absence of other guidance, judges were glad to avail
themselves of them and remain potentially so today, but the likelihood of its operation is now very small. Myneni lists the criteria that courts of law raise to accept
local and general customs as valid customary law: reasonable, of immemorial antiquity, having continuity, capable of peaceable enjoyment, not inconsistent with statute, and observed as of right.1271 In short, the criteria for a legal custom require that
it is ancient, certain and reasonable.
The Indian Supreme Court has stated that a custom is a usage by virtue of
which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality
[T]o be valid, a custom must be ancient, certain and reasonable, and [if] in derogation
of the general rules of law must be construed strictly (emphasis added).1272 It has further made it clear that a party relying on a custom is obliged to establish it by clear
and unambiguous evidence For a custom to have a colour of rule of law, it is
necessary for the party claiming it to plead and thereafter prove that such custom is
ancient, certain and reasonable.1273 Upadhyay has noted that the recognition of
customs by the court itself is a difficult enterprise and this also partly explains why
customs in the modern world are increasingly not a very important source of law.
Determining whether a custom is ancient, certain and reasonable (enough) to
amount to customary law is, therefore, virtually a matter of uncontrolled discretion
of the judges.
It is clear from a case on irrigation tanks decided in 2002 that customs can also
be a rather technical procedural matter.1274 The Supreme Court concluded that the
right in question was not a custom but in the nature of a contract between certain
parties, entered into between them at a certain point of time, and relating to certain
property. The right-holder in the case was a dalit community, fishermen by tradition, and the right concerned their catching of fish from private, artificial irrigation
tanks. Admittedly, the appellants had enjoyed the fishing right uninterruptedly for
over a hundred years, and written records in the form of wazib-ul-arz (village customs) had been drawn up on three occasions. However, the suit was a sequel to
1271
Myneni, p. 145, also pointing to the distinction between legal customs and conventional customs, or usages, both of which have sanctions connected to them.
1272
Bihar v. S.G. Bose 1968 (1) SCR 313.
1273
2001 AIR (SC) 938, cited in Upadhyay 2003.
1274
Tulsi Ram and Ors. v. Mathura Sagar Pan Tatha Krishi and Anr. WITH The Proprietors of Mathura
Sagar Bareja and Anr. v. Tulsiram and Ors. AIR 2003 SC 243 = (2003) 1 SCC 478 = 2003 (7)
SCALE 7.
369
one commenced in 1954, and during the fifty years of suits, appeals, amended defences, etc., the fishermens plea had been (unintentionally?) restricted in a way
which made it procedurally impossible for the Supreme Court to acknowledge the
wazib-ul-arz. The Court eventually relied on what the High Court had held that a
right by way of custom
cannot also be considered and recognised, for such a right would be unreasonable,
being destructive of the subject matter itself if exercised, and if could be exercised as permitted and to that extent. If an indefinite body of person, and if a large number of persons were authorised to exercise such a right and if there was no restriction of
whatever kind, then a customary right which could produce such a result must be
deemed to be unreasonable, and therefore, unenforceable in a court of law (sic,
emphasis added).1275
This quotation should be compared with what the Supreme Court had earlier laid
down: [A] claim in the nature of a profit--prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom.1276 The present Court applied the
criteria for determining whether a valid custom was at hand, and simultaneously fell
back both on previous precedents and English common law. The emphasis was,
eventually, put on the aspect of reasonability, taking a rather narrow approach to
this.
It seems as if the Court(s) pointed to the finiteness of natural resources and the
need, therefore, for sustainable handling of them. Fishing in itself means taking out,
subtracting in a final way, a part of the ecological system and can lead to deterioration of it. In the long run, the subject matter the right to fish may be at stake if
over-fishing is allowed. If done on large scale, by an indefinite body of persons,
this risk is even higher. Hence, such a right would be unreasonable, and thus, a customary right cannot be allowed. We can, on the other hand, interpret the case
about the fishing community so that the private property-holders right to noninterference was upheld at the expense of the lower caste.1277
It has been shown that rights in regard to forests and wastelands were acknowledged as customary law in various parts of India if they were inscribed in various
settlement records or obtained by license or grant when the colonial administrators
appropriated these rights (1870s).1278 Customary rights to, for instance, natural irri1275
Ibid, para 10, quoting the High Courts judgment, para 64.
Bihar v. S.G. Bose 1968 (1) SCR 313. According to the doctrine of profit prendre, the right to
take something out of someones soil requires that the thing taken, the so-called subject-matter of
a profit, must at the time of taking be susceptible of ownership. According to English common
law, this requirement normally excludes water, as water is not capable of being owned (except for
if appropriated, confined, or stored in some artificial receptacle).
1277
Upadhyay, 2003, has made the interpretation from the above case that customs are sources of
law only if they are recorded in statutes or recognised by courts. There is nothing to suggest
that he is correct in this.
1278
Through the English colonisers enactment of legislation during the 1860-70s, a number of
natural resources were pronounced to be property of the Crown. Unrecorded rights were rede1276
370
gation tanks were saved from being regulated by the Indian Easements Act when
this was enacted in 1882 (cf. Sec 2(b)). Such rights withstand and arise unappurtenant to a dominant heritage, and without a fixed period of enjoyment being necessary to establish.1279 The Easements Act recognises the customary rights which are
acquired under two rules: long usage or prescription and local custom, subject to
the governments right to regulate the collection, retention and distribution of the
water of rivers and streams flowing in natural channels.
Next, the federal governments right to regulate and control rivers will be analysed against the rights and obligations of the State governments in relation to
drinking water. We return therefore to the Kaveri dispute, and to the needs of Bangalore.
3 Water rights and the Kaveri

3.1 Bangalores water resources revisited
Access management is a major challenge for a city such as Bangalore, where the infrastructural upgrading and demand-side strategies always seem to lag behind the
rapid growth. The system of tanks the natural as well as the man-made lakes and
reservoirs should be duly credited when the history of Bangalores water resources and development is written. As Nair has observed, the city
survived for nearly two and a half centuries without noticeable physical expansion. Perhaps this has to do with the organization of economic activity in the settlement itself, which for a long period was a node for the collection of surplus
from the countryside The limited availability of water may have imposed its own limits
on the growth of the city population. No wonder then that the provision of water
through a system of tanks became a crucial element of city building throughout
the twentieth century (emphasis added).1280
Nairs analysis of how the city has been shaped by among other things ideologies,
principles of planning, and law is still valid. Unanticipated uses of space fashion a
city quite different from the one envisaged by planners and technocrats, she holds.
An example of this is the GBWAS Project which, to the initial planners surprise
had to be extended to a number of residential layouts and whole new wards not accounted for from the beginning. Apart from the fact that the budgetary and time
wise frameworks burst due to this, it was also apparent that the water available was
not enough to share if the minimum standard of 135 lpcd was to be met. The
Board is already (2008) experiencing a shortfall in the amounts deliverable to its existing customers, estimated to some 235 MLD. And there are still new households
fined as alienable privileges by the Department of Revenue, Agriculture, and Commerce (Forests). Goswami, p. 58; Guha 1996 (1962), cited in Goswami, p. 57.
1279
The custom must (still) be reasonable and certain, Parbhawati Devi v. Mahendra Singh AIR 1981
Pat. 133.
1280
Nair, pp. 29f.
371
clamouring for connections, not to mention the impact of a new international airport and hotels in one of the former municipalities.
It is complicated to estimate the recharge of Bangalores groundwater resources
due to the hard-rock conditions and the fact that urban environments have their
own conditions. The adoption of refined methods is nevertheless highly pertinent.
The city is very widespread and leaking pipes, tanks and lakes that have not yet
been encroached upon, public and private RWH structures, and so on, add to the
groundwater recharge in a way currently not accounted for. However, although
there may be groundwater enough for exploitation yet some time, the quality concerns are grave and deepening. On the other hand, efforts to reduce leakage to 15
percent are announced and if these succeed, they will reportedly represent an
amount of water equal to implementing one additional Cauvery Project,1281 or about
500 MLD. Less water unintentionally to aquifers, more in the pipe and, eventually,
to the paying consumers, thus?
In Chapters III and VIII it was shown how the practical arrangements for accessing and distributing water concern the planning and execution of schemes for
water supply, O&M of physical structures, and financial investment both public
and private. The bulk of water needed for the citys survival will continue to be
taken from river systems foremost the Kaveri. The water in those rivers is subject
to rights regimes, but not always very secure such. When regulations and orders
such as the one from the Cauvery Disputes Tribunal set and change the conditions for how much water is available, the planning for allocation and sharing between sectors is affected.
For the city of Bangalore and its Water Board, it is fundamental to be able to
make both short and long-term plans based on the availability of raw water and on
projections of demographic changes. Plans to pump water over a distance of 400
km from the River Netravati which flows out in the Arabian Sea and is not subject
to inter-State water disputes, from the River Hemavathi, the water of which is already claimed by farmers, or the Tunga Bhadra Reservoir, have recently been called
off due not least to the very high costs involved.
In AusAIDs Water Supply Master Plan drawn up in 2002, it was summarised
that a permanent basis for water allocation and sharing between Karnataka and
adjacent States is expected from the Cauvery Water Dispute Tribunal in approximately two years. Meanwhile long term planning of water resources projects within
Karnataka is being severely hampered. A critical issue for the Board to resolve
would be the exposure of the Board to conflicts with other users of the Cauvery
waters and the available mechanisms for dealing with them. The Board was therefore recommended to [e]xamine the institutional and legislative provisions needed
for the Board to secure its access to the Cauvery waters, particularly the mechanism
for controlling irrigation usage during droughts.1282
1281
1282
Anonymous 2008f.
AusAID 2002b.
372
3.2 Dispute-settling and water rights

The dispute over the River Kaveri should also be discussed in terms of water
rights, thereby adding another small- as well as large-scale aspects to this dimension. The dispute and its handling raise a number of questions. The Tribunal ruled
in favour of the irrigation interests, and played down the drinking-water needs of
Bangalores present and future population. It decided to go by the boundaries of
the watershed, and concluded that one-third of the (then) city of Bangalore lies
within the Kaveri basin. Consequently, only the people living in this part of Bangalore would be entitled to water from the river, implying that the Water Board will
have to look for other sources of drinking water for those located beyond the watershed. Is this a scientific, equitable, and sustainable approach to understanding
rights, entitlements and allocation of a scarce resource? Is this what is meant by Integrated Water Resources Management (IWRM) thinking? Is it in line with Indias
Water Policy, or with law and morals?
Starting with the first question, is the Tribunal approach scientific, equitable, or
sustainable? Hydrologically, the river basin has an outer boundary determined by
topography. A ridge divides the city of Bangalore of which one pull factor has
always been its elevated location so that precipitation falls on either side. For
measuring and planning reasons, it makes sense to consider the basic units which
the watershed and river basin constitute. Especially regarding a basin that is closed
(already over-allocated), the ability to predict water flow and the volumes available
is very important.
Individual river basins are not self-contained entities; rather, they are a part of
the greater hydrological cycle, and humans have throughout history distorted the
accounts by transferring and exporting water in and out of watersheds and basins
in numerous ways. The notion of IWRM is essential here because a river-basin perspective necessitates a holistic and interdisciplinary approach, with sustainable development as focal point. Integrated means considering several viewpoints simultaneously and in a coordinated mode. The interconnectedness between humans
and nature, land and water, surface and groundwater, sanitation and food production, etc., is pertinent to acknowledge. Management must be seen as a process.
Most important here, though, is that IWRM is about equity and involvement in the
balancing of competing requirements, not about exclusion. To shut out millions of
people in need of drinking water from a source is not compatible with the IWRM
theory. The river basin needs IWRM, but IWRM is conceivable without applying a
river basin perspective.
In terms of the last set of questions it is evident that although Indias inter-State
rivers are subject to special legislation for the solving of disputes, the Supreme
Court retains its jurisdiction in relation to drinking-water issues. In the case of water being drawn from the Kaveri, the Court could thus admit a petition and rule
that water for drinking is prioritised over irrigation, no matter how the river- basin
boundary crosses the citys administrative borders. By comparison, in the Delhi Water Supply case, the Supreme Court ruled that in competition over water between
373
two States, one could not be allowed to use water for non-drinking purposes (irrigation), where this caused people in the other to remain thirsty:
The primary use to which the water is put being drinking, it would be mocking the
nature to force the people who live on the bank of a river to remain thirsty [I]t
would be travesty of justice if the upper-riparian States were to use its water for purposes like irrigation, denying the lower riparian States the benefit of using the water
even for quenching the thirst of its residents (emphasis added).1283
The reverse geographical situation obtains in the River Kaveri dispute Karnataka
is upstream and is thereby in a different position and the decision in Delhi Water
Supply is also for other reasons not directly applicable to this dispute. Nevertheless,
the reasoning of Justice Kuldip Singh established the general principle of priority of
water for drinking over non-drinking. It is in line with the 1987 National Water
Policy then in force as well as the present Policy of 2002. Both establish priorities
for water allocation, to be followed in the planning and operation of systems
(para 5). Hence, drinking water should take precedence over irrigation, and so
forth. Further, they state that irrigation and multipurpose projects should invariably include a drinking water component, wherever there is no alternative source of
drinking water. Drinking water needs of human beings and animals should be the
first charge on any available water (para 8.1). The same priorities are set in the
Karnataka Water Policy (Tamil Nadu adopted a State Water Policy in 1994 and
drafted an updated version in 2003, which is not yet decided on).
Accordingly, the drinking-water needs of the ever-expanding city of Bangalore,
with few other feasible options than to rely on the Kaveri, are to be prioritised over
the use of water for irrigation. The Tribunal should have calculated Bangalores
short-term and long-term needs as its starting point for allocating water, irrespective
of the watershed boundaries. In these calculations, the national standard for a metropolis could, however, be cut to maybe 100 lpcd as part of the process to enforce
demand-side management.
The Karnataka State Government is fully entitled to re-allocate within the State,
in that it chooses how much is to be drawn by the Water Board (given its technological capacity) and can increase that part by reducing what is allocated for irrigation by farmers in their own State. As these farmers constitute a fundamental vote
bank for the politicians such a decision may be fairly counter-productive, though,
and is therefore unlikely. However, this is one of the moves that ought to be implemented to show willingness to compromise and negotiate with the neighbours
downstream, to reach a durable agreement.
There is great potential in compelling not only city households but also farmers
to demand side-strategies such as drip irrigation and a sustainable variety of crops.
As part of this, the difference between food and non-food items needs to be high1283
1996 SCC (2) 572 JT. The inhabitants of Delhi live in an almost permanent situation of acute
water stress and Haryana has continued to show contempt for the MoU. On the other hand,
groundwater is now the dominating source of water for irrigation in Haryana, and problems connected with over-extraction have become a serious threat to the wheat production.
374
lighted. Growing of the very-water-intensive sugarcane crop should not be considered as food production.1284 Sugarcane subsidies should therefore be redirected, and
the water this crop consumes be allocated to production of nutritional foodstuff.
At present, Karnataka seems not to find orders from the Supreme Court or
from the Tribunal legitimate in the case of abstracting water from the Kaveri the
States and water users downstream appear to be the least of Karnatakas worries. A
high-risk political game is being played, but many interests are to be provided for
simultaneously and the sanctions are close to nil.1285
In general, the Kaveri crisis must be seen in the context of deepening agrarian
distress in India and the increasing global food security crisis. The farmers are not
only an important vote bank in general elections; some groups are also very mediawise, and use the attention given to violent protest marches. Threats of suicides
from farmers have been realised at least on one occasion during the Kaveri dispute.
The issue must, however, also be seen in the context of increasing urbanisation,
a trend with many facets but indisputably involving a rise in the number of poor in
the cities. Leaving aside the Water Boards inability or unwillingness to provide
the entire population of its jurisdiction, the amount of water currently pumped
from the river does not suffice to provide even the population of the core city of
Bangalore with the minimum standard of 135 lpcd. After connecting most of the
former municipalities now coming under Greater Bangalore, there will be even less
water per capita, not to mention the 110 villages that are rapidly urbanising.
At present, Bangalores water users are not voicing their concerns very loudly.
Apart from women from slums staging a minor demonstration, and some villages
wondering why they are not part of the GBWAS Project, no demands are really being directed at the Water Board. This may change within the near future, though.
The groundwater on which so many depend is inevitably decreasing in quantity and
quality, and people will be witnessing a further reduction in their access to safe water. Demands on the Board to meet its obligations may grow all the louder, and
may be switched to the politicians and legislators. The use of Kaveri water for
drinking and other basic needs is to be prioritised by the Government. Though it is
generally claimed that the majority of the water goes to irrigation thus mainly to
food production this share will reasonably have to be reduced in order to meet
peoples basic needs and rights in urbanising India.
The Dispute Tribunal and the Supreme Court have together offered a substantial body of directions on the water rights and obligations pertaining to the allocation of the Kaveri. Yet the decisions are constantly being contested and the level of
trust in the formal legal system is abysmal among all parties and groups including
the State of Karnataka which does not acknowledge the decision-makers legitimacy.
1284
It lacks nutritional value and contributes to increasing type-2 diabetes and obesity.
Much research has recently been carried out on transboundary basins, where the river is
shared between two or more nations. The hidden dynamics of water conflicts are often explained
with the terms hydro-hegemony and asymmetric power relations. Cf. Marc Zeitoun.
1285
375
In this chapter, several interpretations of the notion water rights have again been
investigated: from farmers rights based on property in groundwater and on local
practice, via regulated rights under WUA legislation, to the Kaveri dispute in terms
of Bangalores rights vis--vis the states prerogative to allocate water in the public
interest. We can conclude that a water right can mean a range of things depending
on the context.
Water rights as based on customs and practice in the local setting are discussed
mainly within three academic disciplines: law, sociology and anthropology. The major differences may seem to boil down to terminology, but concern fundamentally
how society, the human subjects in it and their exercise of power are viewed and
explained. The three disciplines measure somewhat different things from different
starting points and by using different methodological tools.
One example is the notion of legal pluralism. This is more common among sociologists and anthropologists in their attempts to explain law in action than among
jurists and lawyers who tend to focus on aspects of law in books. Galanter described the Indian legal system as a dichotomy, comprising official law and local,
popular law. It was colonial-style and one in which the official law embodies
norms and procedures congenial to the governing classes and remote from attitudes and concerns of its clientele. This situation, he held, would prevail where
there were unresolved tensions between national and local, formal and popular law.
In heterogeneous societies, the law expresses not primarily the aspirations and
concerns of the society, but those of the groups that formulate, promulgate and
apply the law. He continued that this sort of gap is probably typical of most large
political entities with intensive social differentiation.1286
Galanters characterisation was based on investigations carried out during the
1960s, but is still referred to by scholars both in India and elsewhere. Is it still
meaningful to explain the regulation of water? Though the country has developed
immensely in various ways since Galanters studies, there may yet be villages, wards
and communities where strong traditions uphold order and practice. For instance,
in Bangalore, the metropolis where more than half the population are migrants
from other States, the original Kannadigas show signs of far-reaching conservatism
and State-level nationalism (observable in the legislative efforts to revert the spelling of the citys name to Bengaluru as well as of road signs in Kannada instead of in
English; sentiments are not least noticeable in the Kaveri dispute). The law-maker
is no longer a colonial ruler but the function is still regarded much with the same
suspicious eye by the wo/man in the street an us-and-them situation divides the
subjects of the law from the elite legislator. Faith in politicians and members of the
legislative assembly (MLAs) is small; many poor people vote not because they believe they can affect decisions via the representative they choose in democratic elections, but to receive remuneration (alcohol, Rs.100, a sari or simply a promise that
1286
Galanter, p. 34, with references to, i.a., nineteenth century authors.
376
the public standpost will be opened); many educated people do not even register as
voters.
Living in the era of the global village,1287 the possibilities to understand law in
contexts outside ones own jurisdiction are steadily growing and made easier. Comparative investigations are often carried out for academic reasons, but there is also
large practical importance in drawing from a range of insights and best practices.
Experience can be shared between regulators and law-makers to increase the prospects of enacting effective control instruments for complex social systems and
natural resources such as water. Thus, acts of the legislature in one jurisdiction can
work as a template also in others, as was partly the case when the Indian Constitution was drafted. Framework directives can be issued at central level, much like the
Ground Water Model Bill was aimed to be for the States. The Supreme Court has
several times shown its interest in taking influences from foreign concepts and
principles, for instance by adopting the Public Trust doctrine. This is dynamic positivism at work.
Pluralism is often used to explain the fact that local people do not always adhere
to all details of official law and have created, or stick to, their own but as long as
no systematic order of rules replaces official law we cannot speak of legal pluralism.
Mosse challenged the picture of local, traditional water rights as applying side-byside or instead of channel irrigation regulations or the like. From what he saw, there
seems to be no equivalent of Pasargada law or order without law, as in the cases
described by Sousa Santos and Ellickson. Rather, Mosse pointed to individual action, sometimes joint or organised, as well as operations in the dark.
Mosses results do not tell us that there is no order, no organisation, no rights and
obligations they just explain some of the messiness and power-games applying to
Indian irrigation practices and local rule. Little stability and predictability seems to
exist, and possibly too little agreement on what rights are recognised and enforceable enforce-worthy rights.
From my own interviews with female Panchayat leaders a couple of years before
their villages were incorporated with the city of Bangalore, it seems that women in
decision-making roles tend to emphasise not irrigation issues but the functioning of
the public wells and thus the facilities for drinking water and other domestic purposes. This is, however, not to say that all of these leaders were particularly lawabiding or aware of the formal rights and obligations applicable under the law regulating the Panchayat institution. One lady openly told me that when she was standing
for election as Panchayat president, she and her husband bribed a contestant to
withdraw her candidature. For the coming term, the top post was reserved for a
female dalit and my informant, fulfilling these requirements, was determined to win.
Her behaviour was clearly corrupt, but for a good cause, given that the first thing
she did after being elected was to order that a drinking-water well be bored in her
part of the village where the dalits lived. In her experience, water was probably not
1287
The metaphor of a global village refers not to a place, but to the fact that Internet and World
Wide Web communications simplify the rapid spread of information.
377
as much a right as a matter of (sometimes unfriendly) co-existence and competition

over the resources. She saw her responsibility first and foremost with the other
women in the neglected part of the village, and their need to access water.
Despite the absence of a defined system of de facto water rules and rights or a
recognised customary law, what prevails in India is nonetheless a strong regime of
social norms. The stigmata linked to what was formerly called untouchability, and
oppression due to caste status, persist especially in rural India although abolished
by the Constitution. The problem is expressed essentially as unspoken sub-text1288
and tacit rules for what different sources (wells, taps, tanks, etc.) are accessible to
whom for fetching drinking water. The caste system has more generally been
pointed out as crucial in determining access to the means of production and control over resources, institutions, and forms of surplus extraction.1289
I further perceive the notion of legal pluralism as of little meaning for improving our understanding of the role of rights in regulating water and improving access
to it. The conclusion is rather that regardless of legal culture, the fundamental perception of water is one and the same in Roman law (civil-law tradition), common
law, Hindu law and Islamic law: as such, it does not belong to anyone as a matter of
ownership rights.
In terms of the Kaveri dispute, it is clear that partisan politics in the States of
Karnataka, Tamil Nadu and the Centre make the reaching of a mutual solution very
difficult. The dispute is likely to persist no matter how well the Tribunal and/or the
Supreme Court manage to take all stakeholders views into account in the most holistic of ways which is in itself unfeasible. Political bargaining, an increased number of dialogues between representatives of those concerned, and crystal-clear
rights and obligations may lead to partial and temporary acceptance of the allocation decisions. A more scientific understanding of the water cycle and when water
is consumed, and a view of the river basin as a unit for planning but not for exclusion, are two indispensable bases for a new decision. The debate over whose the
Kaveri water is can probably never be solved, though. Not because it is a riddle, but
because people have feelings and perceptions, and because the Kaveri is a lifeline
for subsistence and basic needs.
Where it is explained in both legally-binding words and in policy that peoples
drinking water needs are to be prioritised, this human right to water stands in a
first-order relation to the water claimed by farmers for irrigation purposes. This
means that the right of Karnataka State to take out water from the Kaveri, to fulfil
obligations corresponding to the Bangalore residents fundamental right to drinking
water, has priority. But how much water is the State/Bangalore ultimately entitled
to? Enough for meeting the basic needs of all citizens, some 20-25 lpcd, or equivalent to the national standard for a metropolis, 135 lpcd? To how many people is the
1288
Mosse, p. 212, describes how the social memory of power and exclusion contained in public
water resources has in recent years made them a focus for asserting new demands for equality
and accountability.
1289
Chakravarti, cited in Prakash & Ballabh, p. 192, footnote 2.
378
Water Board to distribute water? Should it be based on the census made every ten
years, but not taking into account the daily influx of migrants and temporary businesspeople? Based on the jurisdiction recognised by the Board, or as the definition
of Metropolitan Region laid down in various Acts?
The city of Bangalore has never been wholly self-sufficient regarding drinking
water. Competition over the scarce resources is harsh and the citys scope for action is limited, depending as it does on the rural hinterland. It is forced to rely on a
variety of sources and the insecurity of this system makes for vulnerability. To meet
the legal obligation to provide water, the citys own right to water needs to be
firmly established. This must take place via both law and other means such as negotiations and awareness-raising. Sufficient planning and precautions are of growing
importance as urbanisation increases.
To comprehend issues of access and allocation from the perspective and context of the regulator and the regulated as well as what is regulated, we must attempt
to take a larger whole into account. We can achieve this by thinking interdisciplinary and take a systemic approach.
379
Chapter XI
Taking rights and obligations seriously
1 Three dimensions and yet no rights?

In the past few decades there has been a dramatic increase in negotiations between social groups of various kinds and political institutions, whether at the local, national or supra-national level, phrased in a language of rights. Processes of
globalization have led to rights discourses being adopted widely throughout the
world, far from their original sites in the French and American revolutions. Just as
importantly, they have framed new domains of political struggle (emphasis
added).1290
With these words, authors Jane K. Cowan, Marie-Bndicte Dembour and Richard A. Wilson open their anthology Culture and Rights: Anthropological Perspectives. In this
work, apart from proposing an interdisciplinary approach, they emphasise the need
for theoretical explorations of rights to involve empirical, contextual studies because local concerns continue to shape how universal categories of rights are implemented, resisted and transformed.1291 The authors also suggest that the tension
between local and global formulations of rights leads us to consider the interplay
between languages and institutions at a multitude of levels and that culture has
implications on rights.
The aim of the present study to analyse critically the meaning and role of
rights in attaining improved access to water now meets the main, general conclu1290
1291
Cowan, Dembour & Wilson, p. 1.

Ibid.
380
sions of the study, namely that we cannot talk in terms of water and rights unless
we are aware of the multiplicity of rights that prevail simultaneously. Rights (entitlements, claims) must be thought of as corresponding to obligations (duties, responsibilities), but must moreover correspond to dynamic social changes and
needs.
The three dimensions employed here as analytical devices human rights, property rights and water rights represent global rights discourses and to some extent
also struggles, phrased in a language of rights. The study has shown how culture and history have shaped much of the Indian understanding of rights in, over
and to water. In addition, though, there is an institutional setup consisting of authorities, organisations, bodies and boards. Most of these belong to the public
sphere, some not: apart from numerous Indian state actors, the World Bank and
other financial organs are playing a decisive role in the governance of Bangalores
water. There are also private water vendors on the scene. These institutions play a
fundamental role in the interpretation and implementation of the relevant rights
and obligations.
Added to these aspects are physical features and natural conditions of the landscape, and the man-made changes to it. The case of Bangalore shows their role in
improving access to water. Thus the encroached tanks, the citys elevated location
in relation to the distant river, the hard bedrock, but also the rapid urbanisation,
growth and administrative transition affect both availability and how rights and obligations are assured, carried out and perceived.
I started with the proposition that rights is a notion that is often referred to in
the water management and governance debate but often afforded little substance.
In the years I have spent conducting the study, the discussion of access to water as
a human right has taken great steps forward and the obligations which the right
correspond with have been elaborated upon but the right is still not firmly established as part of international human rights law. There is an influential group who
thinks that water neither is a universal human right, nor ought it be. In the Indian
context, the fundamental right to drinking water is expressed in binding terms, but
not taken seriously. Implementation is a great challenge for a variety of reasons
one being that the duties of responsible authorities are not spelled out.
Similarly, issues of groundwater rights were determined in the principally interesting Plachimada case by a High Court late in 2003 and then amended by the same
Court but there was no absolutely authoritative law declared by the Supreme Court
before this study was concluded, and some believe a verdict will be postponed forever. The same applies to the Kaveri dispute: despite a final order from a special
Tribunal, a solution concerning water allocation rights is nowhere in sight. An observation to be drawn from these examples is that getting right takes time, because
obligations and remedies are costly on the duty-bearers.
Water exists in a cyclic process, continuously in movement and changing state
or phase, between vapour, liquid and ice. It is worth being reminded of this before
we make our final analyses of access to water in the Bangalore situation. In nature,
381
water is a continuum but in law, it is often differently regulated depending on the

factors where? when? why? and who? An integrated, holistic, global approach is
pertinent in the efforts to manage and govern water. Different kinds of right, different legal instruments regulate our water resources and these partly converge and
co-exist, but partly also stand in opposition to each other because they are linked to
competing uses. The three dimensions of rights over and to water are interlinked
just as all the phases of water are, and law itself, like water, must be dynamic.
The three dimensions show how different definitions and meanings are given to
the understanding of rights in relation to water resources. If we attempt to marry
the three, we see that different regulations still prevail depending on the function
and purpose of the use. Comparing the strengths of each dimension as they apply
in India today, property rights precede over human rights and water rights (in the
meaning of permits). Although the legal bases for landowners groundwater rights
are neither explicit nor clear, and although the unlimited right has been curbed by
legislation applicable in some situations, it must be argued that the landlord indeed
remains a water lord as long as the right is not further limited by law. As held in
Chapter IX, a sufficiently clear and precise Supreme Court decision by which
judge-made law is laid down is sufficient at least in theory. In practice, the deepest well and most powerful pump is difficult to control, and despite carefully communicated legislation, many will still hold that water under the soil of an individual
person belongs to that person. This social norm, though deeply rooted, is counteracted by the equally strong perception that drinking water is a natural right, and
therefore a human right. However, this right is realised mainly through the state
and the actors empowered to carry out water supply. For the individual, it is difficult to claim the right as long as no remedies are provided for.
With regard to surface water, the state has expressed that the prerogative of legislating and controlling it lies either with the federal government or with the States.
This is contested by many who do not see this as a legitimate order of things. From
the Kaveri Tribunals final directions, we saw that water rights for irrigation preceded over much of the legally-binding right to drinking water when one and the
same over-allocated resource was to be shared. It has been argued that political reasons determined the outcome rather than scientific or purely legal ones. The clash
between perceptions of what interest should predominate is evident also in the Plachimada case again a case where scientific and legal conscientiousness took a
back seat. One thing is common to both: no holistic decision was taken and neither
context nor consequences were recounted in their entirety.
Even with better decisions reached in regard to the Kaveri, the situation in
Plachimada and like cases, the issues would still not be settled. At the end of the
day, no rights, remedies or other parts of the legal system are powerful enough as
such to change enduring situations of competition and conflict between different
sectors of water users. This is as far as we can get with law as the sole instrument: it
must always be combined with other tools and adequate institutions.
382
2 Groundwater rights and private providers

When discussing water rights today, it is noticeable how the same words have often
been used for several decades to describe the same problems. Many features are
nevertheless different now. For example, arguments for permitting the sale of water
rights by decoupling them from land rights and promoting less state involvement
used to be based partly on other reasons than we see at present. On the topic of
water supply and sanitation services, the World Bank held in 1992 that
[i]rrigation accounts for more than 90 percent of withdrawals in low-income
countries Since domestic use almost always has a much higher private and social value than does irrigation, it is from the latter that water will need to be directed Taking rights from rural areas may be impossible for legal or political reasons or undesirable for equity reasons. One solution is for urban areas to compensate
farmers for the loss of irrigation water (emphasis added).1292
Even then, a billion people around the world were lacking an adequate water supply. The World Bank encouraged urban water users, who pay more for water supply services than do farmers, to cut their costs by buying water rights from the latter group. In other words, it prescribed market-driven transfers for cross-sectoral
reallocation. Agricultural and urban users alike had to accept that water was an
economic good with a price. Several striking advantages were associated with these
methods: they were voluntary, yielded economic benefits for both buyers and sellers, reduced environmental problems caused by profligate use of water in irrigation,
and lessened the need for more dams. Agriculture would need to arrange for more
efficient production with less water and farmers would have to do with less.1293 Water was assumedly the same kind of resource whether it was used on the fields, to
quench thirst or to flush toilets. More stringent quality standards of potable water
and costs involved to distribute such water were seemingly not accounted for in the
World Bank theory when the value of water was explained as higher in domestic
use than in agriculture.
Most of the trends and problems on the agenda in 1992 such as climate
change, food crisis and urbanisation are still present, only aggravated. It seems
that the World Banks reallocation mechanism was not the solution it promised to
be. Quite indiscriminate pumping of groundwater is now prevalent in India, often
by absentee landowners whose only or main agricultural product is the water under their land plots. It has become apparent to some that offering water purchasers
access to a deep tubewell is many times more profitable than the alternative, growing crops, or will be at least till the well runs dry and a new aquifer must be found.
The perception that the landowners own the groundwater situated in invisible but
interconnected fissures and cracks underground appears to substantiate Garrett
Hardins controversial thesis: people may act selfishly also when it comes to finite,
1292
1293
World Bank 1992, p. 16.

Ibid, p. 101.
383
shared resources.1294
The water right is only valuable as long as the invisible, unpredictable aquifers
underground are yielding, though. With little or no regulation except non-binding
and vague policies on pumping in relation to recharge rate, groundwater is being
over-extracted in many parts of India today. All the same, more and more water users in a growing number of cities and towns depend on water from wells, and thus
depend on well-owners. The role of small-scale private water vendors has been
pointed out in relation to the MDGs and the target of improving access to water.
Undoubtedly, the private providers are filling a supplementary function in realising
the human right to water. Where the public utility cannot provide water or is not
willing to do so affordably as is the case in large parts of Bangalore, especially
during the summer season the strategy for water users will be to buy water from
elsewhere. So far, there are so many groundwater sellers in Bangalore that prices
are pressed down.1295 This is not the case in, for instance, Chennai, and it is unlikely
to remain so in Bangalore either.
As argued in Chapter V, the poor when forced to pay for water for lack of alternatives are likely to buy small quantities at a time, because of lack of storage
capacity and money. Several scholars emphasise the challenge of improving the inadequate water services, for example by making private providers more responsive
to the needs of the urban poor.1296 In addition, Vishwanath has argued that tanker
owners and operators should be trained in methods of checking water quality and
should adopt simple chlorination methods for the water they deliver.1297 There is an
obvious need for regulation of the sector, with minimum standards and rules under
which sellers can be held accountable.
In India, most informal, private sellers can safely operate on the basis of their
legal right to draw unlimited amounts of groundwater from their land. One inherent problem is that regulation of groundwater through a general system of rights
(permits, allocations) even for the benefit of access to drinking water means that
the state machinery will replace a negative right (refraining from interfering) with a
positive right (providing water to users). Resistance to such a reform will inevitably
be felt. Nevertheless, it is necessary.
3 Regulating access in Bangalore and elsewhere

Bangalore is one of Indias largest cities prosperous, beckoning and constantly
growing. It is typical of a metropolis in a former developing country in many ways.
A.K. Biswas holds that the rural exodus to urban areas will be more testing in
Asian countries such as China and India, where urbanisation is not yet as advanced
as in Latin America. A number of constraints that are both complex and interre1294
Hardin.
Personal communication with seller, January 30, 2007.
1296
Kjelln & McGranahan; McGranahan & Satterthwaite.
1297
Vishwanath 2008.
1295
384
lated have to be overcome simultaneously before full access to water can be assured. One of the most serious challenges is that new sources of water which
could be harnessed and developed cost-effectively and in a socially and environmentally acceptable manner are mostly not available in major urban areas.1298
Instead of advocating the purchase of water rights from farmers, 1299 researchers
and experts talk of demand-side management as the only solution, or in other
words: decreasing the demand and the consumption of water in various ways. This
has been a mantra at least since the early 1990s, as indicated above. Meanwhile, investments in exploitation of groundwater resources have been made, so effectively
way that Indias most attractive aquifers are dry or on the verge of drying up.
With the Kaveri source being strictly limited,1300 groundwater is the current
choice for many in Bangalore. Early in summer 2007, the Corporation even envisaged 100 new bore-wells for the Water Board as the way of tackling the dry season
ahead.1301 Very many households, particularly in the slums, rely on private vendors
selling groundwater if they lack a well of their own and the Water Board fails to deliver. Given the regions hydrogeological and climate conditions, the present development is untenable. Considering also the so-called traffic infarction caused by innumerable vehicles on Bangalores roads, delivery of groundwater via tankers is,
anyway, feasible only within certain distances.
On the positive side, artificial groundwater recharge as well as traditional water
conservation practices (RWH) are prescribed in the National Water Policy. In Bangalore, as in many other places in India, rainwater harvesting (including rooftop
harvesting) is now mandatory and is being implemented increasingly. Both estimations and practical experience show promising results especially on a household basis. Many aquifers can be recharged. One thing this study has shown is also that
with improved methods, more accurate evaluations of the water table in cities such
as Bangalore are plausible. Both recharge and development potential can thus differ
somewhat from the Department of Mines and Geology estimates. For instance, if it
is correct that 39 percent or even more of the raw water abstracted from the Kaveri
is lost on the way to the users, this means that substantial amounts are lost in the
ground, quite some of which should eventually reach the aquifers.
Despite the (unintentional) groundwater recharge, the fact that this high percentage has been known of for more than a decade is, on the other hand, nothing
less than institutionalised wastage. The efficiency of the water supply infrastructure
must improve instead of deteriorating further. Part of the problem is the very old
pipes as indeed e.g. London is also experiencing and part is the omission to
1298
A.K. Biswas, pp. 182f, 191f.

As mentioned, though, the Chennai Water Board is doing exactly this: purchasing water from
landowners at steadily growing distances. There are surely many other similar examples.
1300
Were Karnataka and the Bangalore Water Board to honour the Final Order of 14.52 TMC,
this would effectively deny a majority of the population access to a safe source of drinking water.
From summer 2008 the Water Board will, the Order notwithstanding, deliver 100 MLD to the
new international airport.
1301
Anonymous, 2007f.
1299
385
build up funds for maintenance as required. Let us further not forget that Bangalores infrastructure undergoes massive pressure from constant transition and development roads are dug up over and over again for a range of reasons, and the
city has monsoon climate.
A comparatively small part of the 39 percent is probably non-revenue consumption, water used but not billed. The water lost in the latter way is also not likely to
decrease without considerable subsidies and measures taken to provide basic
amenities to the poor. The opposite is more probable, given the large number of
extremely poor people who live in and migrate into the cities, where strategies for
self-sufficiency involve taking water from the distribution net wherever possible
when other sources are lacking. Demand-side management includes taking such
facts into account, not least to ensure everyones human right to water. In addition,
research suggests that poor people are urbanising more rapidly than the population
as a whole,1302 and this has to be planned for.
The middle- and upper class-consumers already connected, on the other hand,
have little reason to complain about the price of the water. The tariffs are very low
in relation to the actual cost of providing the water supply and sanitation service as
a whole it has been estimated that this subsidy can be as high as Rs.300 a month
for a household.1303 Tariff hikes are planned1304 but economic incentives and information alone do not seem adequate tools for attaining water conservation and efficiency among affluent Bangaloreans.1305 A proper mix of instruments is needed, including drastic measures such as the Water Boards (unlawful) requirement for
RWH structures in 2007.
The Water Board has begun recycling water in special treatment plants for potable purposes. Consumers must realise that this so-called NeWater will be pukka
and probably of better quality than the citys groundwater once the technology is in
place. With rationing around the corner, even big, individual consumers will have
to learn to be more water-savvy. Rights and corresponding duties in the field of access to water cannot solely be the states task to fulfil. Especially if human rights are
seen as codifying morality and solidarity, responsibility also devolves onto water users themselves.
Each water user has her or his more or less limited horizon also in terms of
(access to) drinkable water. This is natural given what can be demanded of peoples
knowledge systems, normally based upon ones own experience and what is handed
1302
Ravallion, Chen & Sangraula.

Vishwanath 2007.
1304
At the time of writing, this has been reported in the mass-media but is not yet confirmed.
1305
In many of the privatisation drives now seen in parts India, dramatically increased prices are
explained as a way of decreasing demand among consumers. What seems to be constantly forgotten, or neglected, is the group of water users who will never become consumers under the conditions stipulated by the providers: in the hand-to-mouth existence of millions of people, there is
simply no ability to pay the advance amounts asked for to get a meter, etc., if one is lucky enough
to even have a khata.
1303
386
down from generation to generation. The idea of what water is pukka and what is
not is, however, not always founded on current scientific knowledge.
Yet some knowledge concerning water may exist but not be implemented for
various reasons even to the detriment of users. In one slum area visited for this
study, where the drinking-water situation was particularly bad, the women were
asked whether they boiled the water before it was consumed. The reply was a rhetorical question: how could they afford the fuel? I interpreted this as a no, they did
not boil; but also so that they seemed to possess at least some of the knowledge
underlying my question (boiling kills the pathogenic bacteria in the water). As I
perceived the topic as very sensitive it revealed the poverty the respondents were
living in I did not follow-up by asking e.g. whether they filtered the water (to remove zooplankton, another pathogen).1306 Hence I was never sure whether these
women knew of other methods for making water safe to drink. The primary aim
was not to investigate these issues, but it would have been interesting to hear the
answers, partly to validate the following statement:
The age-old belief in India is that water is the personification of goddess Ganga,
who has the ability to keep water clean despite letting any pollutant into it. Frequent outbreak of water-borne diseases was considered to be the result of her
anger which could be appeased through worship and performance of certain rituals. Failure to link water-borne diseases to water pollution has led to widespread
abuse of water bodies as public toilets, bathing places, burial and cremation
grounds.1307
It is not clear from the quotation whether there is actually a failure to link waterborne disease to different methods for treating drinking water. Neither is it possible
to say how widespread this belief in the goddess of Ganga is in contemporary India or whether the belief is more prevalent among certain groups (e.g., uneducated
or very religious communities) and/or in certain geographical locations (i.e., the rural areas and in slums). As shown in Chapter IV, the belief is referred to in several
court decisions.1308
Harding has, in any event, warned that
[n]ot all proposed standards for knowledge are equally good indeed, some are
not only inadequate, but dangerous to their believers lives. One can easily be
killed by poisonous food, wild animals toxic environments, dangerous and
faulty technologies, and cigarettes, for example, if one does not carefully evaluate
the standards that friends, strangers, and diverse institutions use to sort knowledge claims into the reliable and the unreliable.1309
1306
It has now been shown (in a peer-reviewed journal the cursor for objective, methodically
performed, and legitimate science) how folded textile material such as a sari can be used to filter
otherwise untreated drinking water. This practice successfully reduces the outbreaks of cholera, cf.
Colwell et al.
1307
Narasimha Rao & Jagadiswara Rao.
1308
For instance, K.M. Chinnappa v. Union of India & ors. (2003) 2 SC 724, para 25.
1309
Harding 1998, p. 19, continuing However, there also is not just one adequate standard for
387
Outbreaks of cholera and gastroenteritis are not uncommon in cities such as Bangalore, as the majority of the sewage water is left untreated or goes through a single
step in treatment plants. Before NeWater can become an alternative source for
those who can afford to choose, public utilities need to build trust in their capacity
to handle water from cradle to grave while retaining adequate quality. A challenge,
but an achievable one.
4 A reform of mindsets: responsibilities, not rights

Over four thousand children around the world die each day because at least in
great part they and their parents have to resort to harmful sources of water,
and/or have access to very little water. Unclean water is the cause, direct or indirect, of the spread of water-related diseases, and too little water contributes greatly
to unsatisfactory and sometimes fatal hygiene standards. The problem of access is
thus not primarily that people get no water at all, because in such situations they die
within days; but that what is within reach and affordable is not safe or sufficient.
As a result, people and especially women and girl children are missing out on fundamental aspects of development, such as schooling, income earning opportunities,
good health and reasonable expectations of life in general. These demands are by
no means excessive but the natural, human rights of each and everyone. For this
reason, it is reassuring that Indian courts are refraining from taking a narrow, dogmatic and black-letter stance on the issue and have instead chosen to drastically
widen the meaning of the constitutional right to life. This contrasts with the positivistic notion of a human right to water in international law, as rigidly interpreted
by some commentators.
The question of access cannot be seen as one of mere survival. In relation to
sanitation, the concepts dignity and security are frequently used and they apply
equally in the area of water for drinking and other domestic purposes. The potential for progress and development at all levels of society depends on access to water.
Provision of water relates to issues of subsistence, health and well-being, to
growth and development. It has also to be carefully balanced against the needs of
food production and other non-domestic uses, including industrial. These factors in
turn remind one of non-city conditions, outside the limits and borders of the urban
scenario. Thus, where conditions are such that competition between different sectors of water-users prevails, urban demands are likely to cause, even aggravate, allocation conflicts. As we have seen, all of this is undoubtedly true for Bangalore.
Ensuring human rights is costly in many ways. Developing nations with few taxpayers and small budgets to spend on various urgent items can find numerous reasons not to prioritise water provision to the poor. It must also be recognised that
much of the change needed to provide the poor, who often suffer most from lack
knowledge [production/claims], but different ones for different purposes, this propos historical/sociological relativism, and Eurocentrism.
388
of access, is likely to upset the privileges of the rich and influential and thereby be
difficult to implement. Prioritising access to a basic need should not need to be a
question of political will but at the end of the day, this is often what the question
boils down to in the debate. A balancing of interests and budgetary allowances is a
prerequisite, but equally important are regulations in combination with appropriate
tools, such as considerable economic incentives and pervasive information campaigns to achieve attitude changes.
To many, the issue of access can sound like a requirement on states to provide
water at all costs, regardless of its availability even in situations of scarcity. Water
access can also appear as a burden ultimately and wholly placed on the state and its
organs. However, there are secondary addressees who bear back-up responsibilities.
Non-state actors including business enterprises, transnational corporations, civil
society and essentially all citizens have roles as suppliers and/or water users. This
means that they (we) simultaneously have fundamental obligations coupled to the
right to water. Respecting and promoting the human right is intertwined with the
principle of sustainable development, the precautionary principle, the Public Trust
doctrine, and so on. Everyone has duties to the community, as the Universal Declaration of Human Rights reminds us of.
For instance, individuals in the role of private vendors have a function in providing drinking water to millions of city dwellers, but also a responsibility to preserve and recharge the groundwater sources. A new doctrine equivalent to that of
polluter pays-principle should therefore also be developed: pumper pays.
Apart from examining the situation in Bangalore, this study has given a general
picture of how access to water is a matter of human rights, property rights, and water rights. It has shown how these dimensions are perceived and regulated. Much of
the study has revolved around the law and its practitioners. Knowledge systems
may be slow to change, and so may the judiciary and the legislator conservatism
and ceremonious procedures are characteristic features. As soon as a hard case has
reached the court, there is however a leeway for the judge(s) to rely on values and
principles to fill the gaps, in addition to positive law. The discretion allowed in the
system functions to build in a potential for resilience which is beneficial for flexibility, capacity to deal with change, and continued development of the law as an instrument. This is of importance in the event of transition, for instance urbanisation,
or a sudden expansion of administrative borders as in the case of Bangalore. It can
also prove important for dealing with shifts in (the view of) societal phenomena
such as are induced by climate change.
Justice Katju is, as noted, a proponent of judicial activism, and has pronounced
that
[i]n todays India human rights and justice can have no other meaning than providing every man and woman in the society with food, water and other necessities
To my mind any other meaning given to the words justice or human rights is
only empty talk and devoid of any real worth or content
389
[T]he judiciary must ensure that the State shall look after the welfare of the people, as is the
mandate of the directive principles of State policy in our Constitution. Although
India has been independent for more than 50 years, yet we have not even been
able to provide food, water and employment to our people. What kind of independence is this? The judiciary must therefore not limit its activity to the traditional role of deciding dispute between two parties, but must also contribute to the
progress of the nation and creation of a social order (emphasis added).1310
Despite high ambitions, though, the judiciary neither can nor should step into the
shoes of the executive. What a judge can provide is unambiguous interpretations
and, when necessary, even new law to fill voids and cracks in the existing law.
When required to uphold human rights and protect environmental values, he or she
must also make use of the discretionary power to construe the spirit of the law
rather than the black letter. The dharma of each individual requires this.
The right and power of the state to regulate water is sometimes talked of in India as unjust, immoral and iniquitous intervention in the peoples absolute rights.
This way of reasoning fails to take into account the public and ecological interest in
water and the need for systemic thinking and an integrated approach to water. In all
modern rule-of-law nations, the state as a representative of the public regulates
common waters. Property law is conceived of as a bundle of rights, including ownership, usufruct and interests such as easements. In modern legal systems, several
aspects of property are regulated so as to limit the extent of the entitlements that
the right-holder can legally claim. A right such as ownership is therefore normally
conditioned by the interests of neighbours, the general public, the natural environment and future generations. The situation in Indian law is no different. No natural
resources vital to the fundamental right to life can be utilised if this results in
irreversible damage to the environment. Misuse of resources can therefore not be
permitted, nor can over-extraction and pollution that reduce others quality of life.
More state intervention is needed, not less. In the statistics, the proportion of people without access to safe drinking water may have halved in India since base year
1990, but millions of people are still waiting for fulfilment of their right to water.
1310
Katju 2003.
390
391
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429

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ACCESS TO WATER

Rights, obligations and

Linkping Studies in Arts and Science No. 439

Linkping Studies in Arts and Science x No. 439

Cover: Girl in Dr Ambedkar Slum, Bangalore

Preface and acknowledgment

1 Competition, knowledge and control

1 Researching water management

3.2 Primary and secondary legal sources

6.2.4 Water governance at local level

4.4 Judicial activism and Public Interest Litigation

3.7 Economic accessibility

1 The right to water: the Indian situation

1 The Indian law of property background

1 Mounting pressure and competition

Three dimensions and yet no rights?

Asian Development Bank

Legal terms, doctrines, and principles

Court decisions; the body of reported judicial opinions, especially in

the constitutional powers vested in it, in order to protect citizens from

Key concepts, definitions of administrative and technical terms, etc.

Indigenous people, tribals.

Meeting, assembly, congregation, or council.

Map 1. India; Karnataka State

Fig. 1. Groundwater recharge in bedrock

List of flow charts

Flow chart 1. The bundle of property

In the matter of Cauvery Water Disputes Tribunal AIR 1992 SC 522.

Mitchell v. Warner (1825), 5 Conn. 497.

1 Competition, knowledge and control

2 Access to water in terms of rights

3 Turning scarcity into safe access

3.2 Goals for development the MDGs

3.3 (Peri-)urbanisation processes

3.4 Urban poverty and water access

4 Setting the stage: access and supply in Bangalore

titudes. The rural-urban divide is furthermore persistent, as is the disparity between

4.2 Indian water woes

Agarwal & Narain.

dian subcontinent would reduce total seasonal precipitation during December,

Ibid, p. 484; Gupta & Deshpande.

4.3 Bangalore an Indian city in transition

Left: Map 1. India (cut); Karnataka State.

downstream States and is therefore the object of a century-long dispute handled by

5 Aim of the study, research questions

6 Outline of the book

1 Researching water management

National Academy of Sciences et al., p. 2.

1.2 Taking a (mainly) qualitative approach

Aunger & Dow, p. 386.

2 Methodological paths and tools

I also made a two-week pre-study in 2003.

2.2 Interviewing and observing

check on what they had attained.82

2.3 Interpreters and interpretations

2.4 Material from other sources

Kvale, p. 193, and cf. pp. 203f.

Samuel, p. 95, with references.

3.2 Primary and secondary legal sources

3.3 Traditional versus empirical research in law

3.4 Interpretation the essence of legal research?

There are also District Courts and Courts of Small Causes.

4 (Self-) reflections and epistemological thoughts